EXHIBIT T3C
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ARCH WIRELESS HOLDINGS, INC.,
as Issuer
12% SUBORDINATED SECURED COMPOUNDING NOTES DUE 2009
INDENTURE
Dated as of [ ], 2002
[ ],
as Trustee
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION...........................2
SECTION 1.01. Definitions..................................................................2
SECTION 1.02. Other Definitions...........................................................14
SECTION 1.03. Incorporation by Reference of the Trust Indenture Act.......................15
SECTION 1.04. Form of Documents Delivered to Trustee......................................15
SECTION 1.05. Acts of Holders; Record Dates...............................................15
SECTION 1.06. Benefits of Indenture.......................................................16
SECTION 1.07. Legal Holidays..............................................................16
ARTICLE II THE NOTES........................................................................17
SECTION 2.01. Title and Terms.............................................................17
SECTION 2.02. Form and Dating.............................................................18
SECTION 2.03. Execution and Authentication................................................18
SECTION 2.04. Registrar, Paying Agent and Depositary......................................19
SECTION 2.05. Paying Agent to Hold Money in Trust.........................................19
SECTION 2.06. Holder Lists................................................................19
SECTION 2.07. Transfer and Exchange.......................................................19
SECTION 2.08. Legends.....................................................................21
SECTION 2.09. Temporary Notes.............................................................22
SECTION 2.10. Mutilated, Destroyed, Lost and Stolen Notes.................................22
SECTION 2.11. Payment of Interest; Interest Rights Preserved..............................23
SECTION 2.12. Persons Deemed Owners.......................................................23
SECTION 2.13. Cancellation................................................................24
SECTION 2.14. CUSIP Numbers...............................................................24
ARTICLE III SATISFACTION AND DISCHARGE.......................................................24
SECTION 3.01. Satisfaction and Discharge of Indenture.....................................24
SECTION 3.02. Application of Trust Money..................................................25
ARTICLE IV REMEDIES.........................................................................25
SECTION 4.01. Events of Default...........................................................25
SECTION 4.02. Acceleration of Maturity; Exercise of Remedies..............................26
SECTION 4.03. Waiver of Past Defaults.....................................................27
SECTION 4.04. Collection of Indebtedness and Suits for Enforcement by Trustee.............27
SECTION 4.05. Trustee May File Proofs of Claim............................................28
SECTION 4.06. Application of Money Collected..............................................28
SECTION 4.07. Limitation on Suits.........................................................28
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TABLE OF CONTENTS
(continued)
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SECTION 4.08. Unconditional Right of Holders to Receive Principal, Premium and Interest...29
SECTION 4.09. Restoration of Rights and Remedies..........................................29
SECTION 4.10. Rights and Remedies Cumulative..............................................29
SECTION 4.11. Delay or Omission Not Waiver................................................29
SECTION 4.12. Control by Majority Noteholders.............................................29
SECTION 4.13. Undertaking for Costs.......................................................30
SECTION 4.14. Waiver of Stay or Extension Laws............................................30
ARTICLE V THE TRUSTEE......................................................................30
SECTION 5.01. Certain Duties and Responsibilities.........................................30
SECTION 5.02. Notice of Defaults..........................................................30
SECTION 5.03. Certain Rights of Trustee...................................................30
SECTION 5.04. Not Responsible for Recitals or Issuance of Notes...........................31
SECTION 5.05. May Hold Notes..............................................................32
SECTION 5.06. Money Held in Trust.........................................................32
SECTION 5.07. Compensation and Reimbursement..............................................32
SECTION 5.08. Disqualification; Conflicting Interests.....................................32
SECTION 5.09. Corporate Trustee Required; Eligibility.....................................33
SECTION 5.10. Resignation and Removal; Appointment of Successor...........................33
SECTION 5.11. Acceptance of Appointment by Successor......................................34
SECTION 5.12. Merger, Conversion, Consolidation or Succession to Business.................34
SECTION 5.13. Preferential Collection of Claims Against Company...........................34
SECTION 5.14. Appointment of Co-Trustee...................................................34
ARTICLE VI HOLDERS' LISTS AND REPORTS BY TRUSTEE............................................35
SECTION 6.01. Company to Furnish Trustee Names and Addresses of Holders...................35
SECTION 6.02. Preservation of Information; Communications to Holders......................35
SECTION 6.03. Reports by Trustee..........................................................35
ARTICLE VII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE.............................36
SECTION 7.01. Consolidation, Etc., Only on Certain Terms..................................36
SECTION 7.02. Successor Substituted.......................................................36
ARTICLE VIII SUPPLEMENTAL INDENTURES..........................................................37
SECTION 8.01. Supplemental Indentures Without Consent of Holders..........................37
SECTION 8.02. Supplemental Indentures with Consent of Holders and Majority Noteholders....37
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TABLE OF CONTENTS
(continued)
PAGE
SECTION 8.03. Execution of Supplemental Indentures........................................38
SECTION 8.04. Effect of Supplemental Indentures...........................................38
SECTION 8.05. Conformity with Trust Indenture Act.........................................39
SECTION 8.06. Reference in Notes to Supplemental Indentures...............................39
ARTICLE IX REDEMPTION OF NOTES..............................................................39
SECTION 9.01. Optional Redemption.........................................................39
SECTION 9.02. Mandatory Prepayment; Use of Average Excess Cash............................39
SECTION 9.03. Applicability of Article....................................................40
SECTION 9.04. Election to Redeem; Notice to Trustee.......................................40
SECTION 9.05. Selection by Trustee of Notes to Be Redeemed................................40
SECTION 9.06. Notice of Redemption........................................................40
SECTION 9.07. Deposit of Redemption Price.................................................41
SECTION 9.08. Notes Payable on Redemption Date............................................41
SECTION 9.09. Notes Redeemed in Part......................................................41
ARTICLE X COVENANTS........................................................................41
SECTION 10.01. Payment of Principal, Premium and Interest..................................41
SECTION 10.02. Maintenance of Office or Agency.............................................41
SECTION 10.03. Money for Note Payments to be Held in Trust.................................42
SECTION 10.04. Existence; Conduct of Business..............................................43
SECTION 10.05. Payment and Performance of Obligations......................................43
SECTION 10.06. Additional Domestic Subsidiaries; Material Foreign Subsidiaries.............43
SECTION 10.07. Indebtedness................................................................44
SECTION 10.08. Liens.......................................................................44
SECTION 10.09. Fundamental Changes.........................................................44
SECTION 10.10. Investments.................................................................44
SECTION 10.11. Asset Sales.................................................................45
SECTION 10.12. Restricted Payments.........................................................45
SECTION 10.13. Prepayments of Indebtedness.................................................46
SECTION 10.14. Transactions with Affiliates................................................46
SECTION 10.15. Repurchase Upon a Change of Control.........................................46
SECTION 10.16. Dividend and Other Payment Restrictions Affecting Subsidiaries..............48
SECTION 10.17. Compliance with Laws; Etc...................................................48
SECTION 10.18. Maintenance of Insurance....................................................48
SECTION 10.19. Change in Nature of Business................................................48
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TABLE OF CONTENTS
(continued)
PAGE
SECTION 10.20. Accounting Changes; Fiscal Year.............................................48
SECTION 10.21. Minimum EBITDA..............................................................48
SECTION 10.22. Minimum Direct Customer Units in Service....................................49
SECTION 10.23. Minimum Total Consolidated Revenues.........................................50
SECTION 10.24. Non-Device Capital Expenditures.............................................51
SECTION 10.25. Device Capital Expenditures.................................................52
SECTION 10.26. Provision of Financial Statements...........................................53
SECTION 10.27. Statement by Officers as to Default; Notice of Default......................54
ARTICLE XI COLLATERAL.......................................................................54
SECTION 11.01. Collateral..................................................................54
SECTION 11.02. Recording and Opinions......................................................54
SECTION 11.03. Possession and Use of Collateral............................................55
SECTION 11.04. Release and Disposition of Collateral.......................................55
SECTION 11.05. Disposition of Collateral Without Release...................................55
ARTICLE XII GUARANTEES.......................................................................56
SECTION 12.01. Guarantees..................................................................56
SECTION 12.02. Subordination of Guarantee..................................................57
SECTION 12.03. Limitation on Guarantor Liability...........................................58
SECTION 12.04. Execution and Delivery of Guarantee.........................................58
SECTION 12.05. Guarantors May Consolidate, etc., on Certain Terms..........................58
SECTION 12.06. Releases Following Sale of Assets...........................................59
ARTICLE XIII SUBORDINATION....................................................................59
SECTION 13.01. Agreement to Subordinate....................................................59
SECTION 13.02. Liquidation, Dissolution or Bankruptcy......................................59
SECTION 13.03. Default on Designated Senior Debt...........................................60
SECTION 13.04. Rights and Obligations of the Trustee and the Holders.......................60
SECTION 13.05. Subrogation.................................................................61
SECTION 13.06. Obligations of Company Unconditional........................................61
SECTION 13.07. Notice by the Company.......................................................61
SECTION 13.08. Right as Holder of Senior Debt..............................................62
SECTION 13.09. Reinstatement...............................................................62
SECTION 13.10. Rights of Trustee and Paying Agent..........................................62
SECTION 13.11. Trust Moneys Not Subordinated...............................................62
SECTION 13.12. Trustee To Effectuate Subordination.........................................62
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(continued)
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SECTION 13.13. Trustee Not Fiduciary for Holders of Senior Debt............................62
SECTION 13.14. Reliance by Holders of Senior Debt on Subordination Provisions..............63
ARTICLE XIV MISCELLANEOUS....................................................................63
SECTION 14.01. Trust Indenture Act Controls................................................63
SECTION 14.02. Notices.....................................................................63
SECTION 14.03. Communication by Holders of Notes with Other Holders of Notes...............64
SECTION 14.04. Certificate and Opinion as to Conditions Precedent..........................64
SECTION 14.05. Statements Required in Certificate or Opinion...............................64
SECTION 14.06. Rules by Trustee and Agents.................................................65
SECTION 14.07. No Personal Liability of Directors, Officers, Employees and Stockholders....65
SECTION 14.08. Governing Law...............................................................65
SECTION 14.09. No Adverse Interpretation of Other Agreements...............................65
SECTION 14.10. Successors..................................................................65
SECTION 14.11. Severability................................................................65
SECTION 14.12. Counterpart Originals.......................................................65
SECTION 14.13. Table of Contents, Headings, etc............................................66
EXHIBITS
EXHIBIT A - Form of Note E
EXHIBIT B - Form of Notation of Guarantee
EXHIBIT C - Form of Collateral Agent Agreement
EXHIBIT D - Form of Security Agreement
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Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Indenture
Act Section Section
---------------- ---------------
Section 310(a)(1) 6.09
(a)(2) 6.09
(a)(3) 6.14
(a)(4) Not Applicable
(a)(5) 6.09
(b) 6.08, 6.10
(c) Not applicable
Section 311(a) 6.13
(b) 6.13
(c) Not applicable
Section 312(a) 7.01, 7.02(a)
(b) 7.02(b)
(c) 7.02(c)
Section 313(a) 7.03(a)
(b) 703(a)
(c) 7.03(a)
(d) 7.03(b)
Section 314(a) 10.34, 10.35(a)
(b) 1.02
(c)(1) 1.02
(c)(2) 1.02
(c)(3) 1.02
(d) 1.02
(e) 1.02
Section 315(a) 6.01
(b) 6.02
(c) 6.01
(d) 6.01
(e) 5.14
Section 316
(a)(1)(A) 5.02, 5.12
(a)(1)(B) 5.02, 5.13
(a)(2) Not applicable
(b) 5.08
(c) 1.04(c)
Section 317(a)(1) 5.03
(a)(2) 5.04
(b) 10.03
Section 318(a) 1.07
Note: This cross reference table shall not, for any purpose, be deemed to be a
part of this Indenture.
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INDENTURE, dated as of __________, 2002, by and among Arch Wireless
Holdings, Inc., a Delaware corporation (the "COMPANY"), Arch Wireless
Communications, Inc., a Delaware corporation ("ARCH"), Arch Wireless, Inc., a
Delaware corporation (the "PARENT"), and the direct and indirect subsidiaries of
the Parent listed on Schedule I hereto (such subsidiaries, the "SUBSIDIARY
GUARANTORS," and together with Arch and the Parent, herein the "GUARANTORS") and
[ ], as Trustee (the "TRUSTEE").
RECITALS
WHEREAS, on November 9, 2001, three creditors filed an involuntary
petition against Arch under Chapter 11 of Title 11 of the United States Code
(the "BANKRUPTCY CODE");
WHEREAS, on December 6, 2001, Arch consented to entry of an order for
relief and the Company and the other Guarantors each filed a voluntary petition
for relief under Chapter 11 of the Bankruptcy Code with the United States
Bankruptcy Court for the District of Massachusetts (the "BANKRUPTCY COURT");
WHEREAS, the Company and the Guarantors filed Debtors' First Amended
Joint Plan of Reorganization which was approved by the Bankruptcy Court on [ ],
2002 (as amended, the "PLAN");
WHEREAS, pursuant to the Plan, the Company is required to issue the
Notes (as defined herein), to certain holders of indebtedness of the Company and
certain of the Guarantors outstanding on the date the Plan was approved by the
Bankruptcy Court;
WHEREAS, the Company has duly authorized the creation of an issue of
its 12% Subordinated Secured Compounding Notes due 2009 (the "NOTES") of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture;
WHEREAS, all things necessary to make the Notes, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done;
WHEREAS, the Guarantors have duly authorized the guarantee of the
Notes, and to provide therefor, the Guarantors have duly authorized the
execution and delivery of this Indenture; and
WHEREAS, all things necessary to make the Guarantees, when executed by
the Guarantors and when the Notes have been authenticated and delivered
hereunder and duly issued by the Company, the valid obligations of the
Guarantors, and to make this Indenture a valid agreement of the Guarantors, in
accordance with their and its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the acquisition of the
Notes by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Notes, as follows:
ARTICLE I
DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) The definitions of terms herein shall apply equally to the singular
and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms.
The words "include," "includes" and "including" shall be deemed to be followed
by the phrase "without limitation." The word "will" shall be construed to have
the same meaning and effect as the word "shall." Unless the context requires
otherwise, (i) any definition of or reference to any agreement, instrument or
other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified, (ii) any definition of or reference to any law shall be
construed as referring to such law as from time to time amended and any
successor thereto and the rules and regulations promulgated from time to time
thereunder, (iii) any reference herein to any Person shall be construed to
include such Person's successors and assigns, (iv) the words "herein," "hereof"
and "hereunder," and words of similar import, shall be construed to refer to
this Indenture in its entirety and not to any particular provision hereof, (v)
all references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Indenture, and (vi) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
(2) Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP;
provided that if the Company notifies the Trustee that the Company requests an
amendment to any provision hereof to eliminate the effect of any change
occurring after the date of this Indenture in GAAP or in the application thereof
on the operation of such provision, regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then
such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance
herewith. Unless the context otherwise requires, any reference to a fiscal
period shall refer to the relevant fiscal period of the Company.
"ACCOUNT DEBTOR" has the meaning specified in Article 9 of the UCC.
"ADMINISTRATIVE AGENT" means the named administrative agent, in its
capacity as administrative agent under any Credit Agreement, or any successor
thereto.
"AFFILIATE" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"AGENT" means any Registrar, co-registrar, Paying Agent or additional
paying agent.
"APPLICABLE PROCEDURES" means, with respect to any transfer, redemption
or exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary that apply to such transfer, redemption or
exchange.
"ARCH" means Arch Wireless Communications, Inc., a Delaware
corporation.
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"AVERAGE EXCESS CASH," from the date hereof until [ ], 2004, means the
amount by which the aggregate average daily collected balances of the Note
Parties' bank and financial accounts for any fiscal month exceeds $45,000,000 in
cash and Cash Equivalents (less the available amount (i.e., the borrowing base
amount, whether or not used) of any Credit Agreement as of the date of
calculation). From and after [ ], 2004, "Average Excess Cash" will mean the
amount by which the aggregate average daily collected balances of the Note
Parties' bank and financial accounts for any fiscal month exceeds $35,000,000 in
cash and Cash Equivalents (less the available amount (i.e., the borrowing base
amount, whether or not used) of any Credit Agreement as of the date of
calculation).
"BANKRUPTCY CODE" has the meaning set forth in the recitals to this
Indenture.
"BANKRUPTCY COURT" has the meaning set forth in the recitals to this
Indenture.
"BOARD OF DIRECTORS" means: (1) with respect to a corporation, the
board of directors of the corporation; (2) with respect to a partnership, the
Board of Directors of the general partner of the partnership; and (3) with
respect to any other Person, the board or committee of such Person serving a
similar function.
"BOARD RESOLUTION" of a Person means a copy of a resolution certified
by the Secretary or a duly authorized Assistant Secretary of such Person to have
been duly adopted by the Board of Directors and to be in full force and effect
on the date of such certification, and delivered to the Trustee.
"BUSINESS DAY" means (i) any day excluding Saturday, Sunday and any day
which is a legal holiday under the laws of the State of New York or is a day on
which banking institutions located in such state are required or authorized by
law or other governmental action to close, and (ii) a day of the year on which
the Collateral Agent is not required or authorized to close.
"CAPITAL EXPENDITURES" means, with respect to any Person for any
period, the aggregate of amounts that would be reflected as additions to
property, plant or equipment on a consolidated balance sheet of such Person and
its subsidiaries prepared in conformity with GAAP, excluding interest
capitalized during construction.
"CAPITAL LEASE" means, with respect to any Person, any lease of
property by such Person as lessee which would be accounted for as a capital
lease on a balance sheet of such Person prepared in conformity with GAAP.
"CASH EQUIVALENTS" means (a) securities issued or fully guaranteed or
insured by the United States government or any agency thereof; (b) certificates
of deposit, eurodollar time deposits, overnight bank deposits and bankers'
acceptances of any commercial bank organized under the laws of the United
States, any state thereof, the District of Columbia, any foreign bank, or its
branches or agencies (fully protected against currency fluctuations) which, at
the time of acquisition, are rated at least "A-1" by Standard & Poor's Rating
Services ("S&P") or "P-1" by Xxxxx'x Investors Services, Inc. ("MOODY'S"); (c)
commercial paper of an issuer rated at least "A-1" by S&P or "P-1" by Moody's;
and (d) shares of any money market fund that (i) has at least 95% of its assets
invested continuously in the types of investments referred to in clauses (a)
through (c) above, (ii) has net assets of not less than $500,000,000; and (iii)
is rated at least "A-1" by S&P or "P-1" by Moody's; provided, however, that the
maturities of all obligations of the type specified in clauses (a) through (c)
above shall not exceed 180 days.
"CHANGE IN CONTROL" means the occurrence at any time after the date
hereof of any of the following circumstances:
(a) any person or group of persons (within the meaning of the
Exchange Act), shall have acquired beneficial ownership (within the
meaning of Rule 13d-3 promulgated by the Commission under the Exchange
Act) of 50% or more of the issued and outstanding Voting Stock of the
Parent;
3
(b) during any period of twelve consecutive calendar months,
individuals who at the beginning of such period constituted the Board of
Directors of any of the Note Parties or their subsidiaries (together with
any new directors whose election by the Board of Directors of the Parent
or whose nomination for election by the stockholders of any of the Note
Parties or their subsidiaries was approved by a vote of at least
two-thirds of the directors then still in office who either were directors
at the beginning of such period or whose elections or nomination for
election was previously so approved) cease for any reason other than death
or disability to constitute a majority of the directors then in office;
(c) the failure of the Parent to own directly, beneficially
and of record, 100% of the aggregate ordinary voting power represented by
the issued and outstanding Stock and Stock Equivalents of Arch on a fully
diluted basis; or
(d) the failure of Arch to own directly, beneficially and of
record, 100% of the aggregate ordinary voting power represented by the
issued and outstanding Stock and Stock Equivalents of the Company on a
fully diluted basis.
"CODE" means the Internal Revenue Code of 1986 (or any successor
legislation thereto), as amended from time to time.
"COLLATERAL" means any and all "Collateral" as defined in the
Collateral Agent Agreement and the Security Agreement.
"COLLATERAL AGENT" means [ ], in its capacity as
collateral agent under the Collateral Agent Agreement, or any successor thereto.
"COLLATERAL AGENT AGREEMENT" means the Collateral Agent Agreement,
substantially in the form of Exhibit C, among the Note Parties, the Indenture
Trustees, the Administrative Agent and the Collateral Agent, for the benefit of
the Secured Parties.
"COMMISSION" means the Securities and Exchange Commission.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or
order signed in the name of the Company by its Chairman of the Board, its Chief
Executive Officer, its Vice Chairman of the Board, its President, a Vice
President, its Chief Financial Officer, its Treasurer, an Assistant Treasurer,
its Secretary or an Assistant Secretary, and delivered to the Trustee.
"COMPOUNDED VALUE" means, for any Note, as of any date of
determination, the sum of (A) the principal amount of the Note and (B) any
interest in respect of such Note accrued through such date but in no event later
than the Trigger Date in accordance with Section 2.01 hereof and the terms of
such Note. On the date of issuance of any such Note, the amount under clause (B)
shall be zero.
"CONSOLIDATED NET INCOME" means, for any Person for any period, the
net income (or loss) of such Person and its subsidiaries for such period,
determined on a consolidated basis in conformity with GAAP; provided, however,
that: (a) the net income of any other Person in which such Person or one of its
subsidiaries has a joint interest with a third party (which interest does not
cause the net income of such other Person to be consolidated into the net income
of such Person in accordance with GAAP) shall be included only to the extent of
the amount of dividends or distributions paid to such Person or subsidiary; (b)
the net income of any subsidiary of such Person that is subject to any
restriction or limitation on the payment of dividends or the making of other
distributions shall be excluded to the extent of such restriction or limitation;
(c) (i) [the net income (or loss) of any Person acquired in a pooling of
interest transaction for any period prior to the date of such acquisition, and
(ii)] any net gain (but not loss) resulting from an Asset
4
Sale by such Person or any of its subsidiaries other than in the ordinary course
of business shall be excluded; and (d) extraordinary gains and losses and any
one-time increase or decrease to net income which is required to be recorded
because of the adoption of new accounting policies, practices or standards
required by GAAP shall be excluded.
"CONSOLIDATED TOTAL ASSETS" means, at any date of determination, the
total assets of the Parent and the Subsidiaries determined on a consolidated
basis in accordance with GAAP at such date.
"CONTRACTUAL OBLIGATION" of any Person means any obligation,
agreement, undertaking or similar provision of any security issued by such
Person or of any agreement, undertaking, contract, lease, indenture, mortgage,
deed of trust or other instrument (excluding a Note Document) to which such
Person is a party or by which it or any of its property is bound or to which any
of its properties is subject.
"CONTROL" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
The terms "Controlling" and "Controlled" have meanings correlative thereto.
"CORPORATE TRUST OFFICE" mean the principal office of the Trustee in
__________________, at which at any particular time its corporate trust business
shall be administered, which at the date hereof is
____________________________, ________________.
"CREDIT AGREEMENT" means one or more debt facilities or agreements,
in each case with banks or other institutional lenders providing for revolving
credit loans in an amount not to exceed $35,000,000 to be used on a revolving
credit basis for working capital purposes, in each case, as amended, restated,
modified, renewed, refunded, replaced, restructured, restated or refinanced
(including any agreement to extend the maturity thereof and adding additional
borrowers or guarantors) in whole or in part from time to time under the same or
any other agent, lender or group of lenders.
"CUSTOMARY PERMITTED LIENS" means, with respect to any Person, any
of the following Liens:
(a) Liens with respect to the payment of taxes, assessments or
governmental charges in all cases which are not yet due or which are being
contested in good faith by appropriate proceedings and with respect to which
adequate reserves or other appropriate provisions are being maintained to the
extent required by GAAP;
(b) Liens of landlords arising by statute and Liens of suppliers,
mechanics, carriers, materialmen, warehousemen or workmen and other Liens
imposed by law created in the ordinary course of business for amounts not yet
due or which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves or other appropriate provisions are
being maintained to the extent required by GAAP;
(c) deposits made in the ordinary course of business in connection
with worker's compensation, unemployment insurance or other types of social
security benefits or to secure the performance of bids, tenders, sales,
contracts (other than for the repayment of borrowed money) and surety, appeal,
customs or performance bonds;
(d) encumbrances arising by reason of zoning restrictions,
easements, licenses, reservations, covenants, rights-of-way, utility easements,
building restrictions and other similar encumbrances on the use of real property
that do not materially detract from the value of such real property or interfere
with the ordinary conduct of the business conducted and proposed to be conducted
at such real property;
5
(e) encumbrances arising under leases or subleases of real
property that do not in the aggregate materially detract from the value of such
real property or interfere with the ordinary conduct of the business conducted
and proposed to be conducted at such real property; and
(f) financing statements of a lessor's rights in and to personal
property leased to such Person in the ordinary course of such Person's business.
"DEFAULT" means any event or condition which constitutes an Event of
Default or that upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"DEFINITIVE NOTE" means a certificated Note registered in the name
of the Holder thereof and issued in accordance with Section 2.07 hereof,
substantially in the form of Exhibit A hereto except that such Note shall not
bear the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
"DEPOSITARY" means, with respect to the Notes issuable or issued in
whole or in part in global form, any Person authorized by the Company to serve
as the Depositary with respect to the Notes, until a successor shall have been
appointed and become such pursuant to the applicable provision of this
Indenture, and, thereafter, "Depositary" shall mean or include such successor.
"DESIGNATED SENIOR DEBT" means any Indebtedness outstanding under
the Credit Agreement, if any, and the Senior Notes.
"DOLLARS" or "$" refers to lawful money of the United States of
America.
"DOMESTIC SUBSIDIARY" means, as to any Person, a subsidiary of such
Person organized under the laws of the United States of America, any state
thereof or the District of Columbia.
"EBITDA" means, with respect to any Person for any period, an amount
equal to: (a) Consolidated Net Income of such Person for such period; plus (b)
the sum of, in each case to the extent included in the calculation of such
Consolidated Net Income but without duplication, (i) any provision for income
taxes, (ii) Interest Expense, (iii) loss from extraordinary items, (iv)
depreciation, depletion and amortization of intangibles or financing or
acquisition costs, (v) all other non-cash charges and non-cash losses for such
period, including the amount of any compensation deduction as the result of any
grant of Stock or Stock Equivalents to employees, officers, directors or
consultants, other than charges representing accruals of future cash expenses,
(vi) severance payments to employees, whether or not previously reserved for and
(vii) all cash restructuring charges; minus (c) the sum of, in each case to the
extent included in the calculation of such Consolidated Net Income but without
duplication, (i) any credit for income tax, (ii) interest income, (iii) gains
from extraordinary items for such period, (iv) any aggregate net gain (but not
any aggregate net loss) from the sale, exchange or other disposition of capital
assets by such Person, and (v) any other non-cash gains or other items which
have been added in determining Consolidated Net Income, including any reversal
of a change referred to in clause (b)(v) above by reason of a decrease in the
value of any Stock or Stock Equivalent.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"FISCAL QUARTER" means each of the three-month periods ending on
[March 31, June 30, September 30 and December 31].
"FISCAL YEAR" means the twelve-month period ending on [December 31].
"FOREIGN SUBSIDIARY" means, as to any Person, any subsidiary of such
Person other than a Domestic Subsidiary.
6
"GAAP" means generally accepted accounting principles in effect in
the United States of America as of the date hereof unless another date is
specified herein.
"GLOBAL NOTE" means a Note substantially in the form of the Note
attached hereto as Exhibit A.
"GOVERNMENT SECURITIES" means direct obligations of, or obligations
fully and unconditionally guaranteed or insured by, the United States of America
or any agency or instrumentality thereof for the payment of which obligations or
guarantee the full faith and credit of the United States is pledged and which
are not callable or redeemable at the issuer's option.
"GOVERNMENTAL AUTHORITY" means the government of the United States
of America, any other nation or any political subdivision thereof, whether state
or local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"GUARANTEE" means each guarantee by the Parent or any of the
Subsidiaries of any Notes or Senior Notes.
"GUARANTY OBLIGATION" means, as applied to any Person, any direct or
indirect liability, contingent or otherwise, of such Person with respect to any
Indebtedness of another Person, if the purpose or intent of such Person in
incurring the Guaranty Obligation is to provide assurance to the obligee of such
Indebtedness that such Indebtedness will be paid or discharged, or that any
holder of such Indebtedness will be protected (in whole or in part) against loss
in respect thereof, including: (a) the direct or indirect guaranty, endorsement
(other than for collection or deposit in the ordinary course of business),
co-making, discounting with recourse or sale with recourse by such Person of
Indebtedness of another Person; and (b) any liability of such Person for
Indebtedness of another Person through any agreement (contingent or otherwise)
(i) to purchase, repurchase or otherwise acquire such Indebtedness or any
security therefor, or to provide funds for the payment or discharge of such
Indebtedness (whether in the form of a loan, advance, stock purchase, capital
contribution or otherwise), (ii) to maintain the solvency or any balance sheet
item, level of income or financial condition of another Person, (iii) to make
take-or-pay or similar payments, if required, regardless of non-performance by
any other party or parties to an agreement, (iv) to purchase, sell or lease (as
lessor or lessee) property, or to purchase or sell services, primarily for the
purpose of enabling the debtor to make payment of such Indebtedness or to assure
the holder of such Indebtedness against loss, or (v) to supply funds to or in
any other manner invest in such other Person (including to pay for property or
services irrespective of whether such property is received or such services are
rendered), if in the case of any agreement described under subclause (i), (ii),
(iii), (iv) or (v) of clause (b) of this sentence the primary purpose or intent
thereof is as described in the preceding sentence. The amount of any Guaranty
Obligation shall be equal to the amount of the Indebtedness so guaranteed or
otherwise supported.
"GUARANTORS" means, collectively, the Parent, Arch and each of the
Subsidiary Guarantors.
"HEDGING CONTRACTS" means all Interest Rate Contracts, foreign
exchange contracts, currency swap or option agreements, forward contracts,
commodity swap, purchase or option agreements, other commodity price hedging
arrangements, and all other similar agreements or arrangements designed to alter
the risks of any Person arising from fluctuations in interest rates, currency
values or commodity prices.
"HOLDER" means a Person in whose name a Note is registered in the
Note Register.
"INDEBTEDNESS" of any Person means without duplication: (a) all
indebtedness of such Person for borrowed money; (b) all obligations of such
Person evidenced by notes, bonds, debentures or similar instruments or which
bear interest; (c) all reimbursement and all obligations with respect to letters
of credit, bankers' acceptances, surety bonds and performance bonds, whether or
not matured; (d) all
7
indebtedness for the deferred purchase price of property or services, other than
trade payables incurred in the ordinary course of business which are not
overdue; (e) all indebtedness of such Person created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property); (f) all obligations of such Person under Capital
Leases and the present value of future rental payments under all synthetic
leases; (g) all Guaranty Obligations of such Person; (h) all obligations of such
Person to purchase, redeem, retire, defease or otherwise acquire for value any
Stock or Stock Equivalents of such Person, valued, in the case of redeemable
preferred stock, at the greater of its voluntary or involuntary liquidation
preference plus accrued and unpaid dividends; (i) all payments that such Person
would have to make in the event of an early termination on the date Indebtedness
of such Person is being determined in respect of Hedging Contracts of such
Person; and (j) all Indebtedness of the type referred to above secured by (or
for which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien upon or in property (including Accounts
(as defined in the Security Agreement) and general intangibles) owned by such
Person, even though such Person has not assumed or become liable for the payment
of such Indebtedness.
"INDENTURE" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
entered into pursuant to applicable provisions hereof.
"INDENTURE TRUSTEES" means the Senior Indenture Trustee and the
Junior Indenture Trustee.
"INTEREST EXPENSE" means, for any Person for any period, the total
interest expense of such Person and its subsidiaries for such period determined
on a consolidated basis in conformity with GAAP and including, in any event,
interest capitalized [DURING CONSTRUCTION] for such period and net costs under
Interest Rate Contracts for such period (without deducting therefrom any (i) net
gains of such Person and its subsidiaries under Interest Rate Contracts for such
period determined on a consolidated basis in conformity with GAAP, or (ii)
interest income of such Person and its subsidiaries for such period determined
on a consolidated basis in conformity with GAAP).
"INTEREST PAYMENT DATE" means the Stated Maturity of an installment
of interest on the Notes.
"INTEREST PERIOD" means (i) the period commencing on the date hereof
and ending on and including the day immediately preceding the next succeeding
Interest Payment Date and (ii) the period commencing on and including an
Interest Payment Date and ending on and including the day immediately preceding
the next succeeding Interest Payment Date.
"INTEREST RATE CONTRACTS" means all interest rate swap agreements,
interest rate cap agreements, interest rate collar agreements and interest rate
insurance.
"INVESTMENT" means, with respect to any Person: (a) any purchase or
other acquisition by that Person of (i) any security issued by, (ii) a
beneficial interest in any security issued by, or (iii) any other equity
ownership interest in, any other Person; (b) any purchase by that Person of all
or a significant part of the assets of a business conducted by another Person;
(c) any loan, advance (other than deposits with financial institutions available
for withdrawal on demand, prepaid expenses, accounts receivable and similar
items made or incurred in the ordinary course of business as presently
conducted), or capital contribution by that Person to any other Person,
including all Indebtedness of any other Person to that Person arising from a
sale of property by that Person other than in the ordinary course of its
business; and (d) any guarantee incurred by that Person in respect of
Indebtedness of any other Person.
"JUNIOR INDENTURE TRUSTEE" means the Trustee.
8
"LIEN" means any mortgage, deed of trust, pledge, hypothecation,
assignment, charge, deposit arrangement, encumbrance, lien (statutory or other),
security interest or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever intended to assure
payment of any Indebtedness or other obligation, including any conditional sale
or other title retention agreement, the interest of a lessor under a Capital
Lease, any financing lease having substantially the same economic effect as any
of the foregoing, and the filing of any financing statement under the UCC or
comparable law of any jurisdiction naming the owner of the asset to which such
Lien relates as debtor.
"LOAN DOCUMENTS" means any Credit Agreement, the promissory notes
issued thereunder, any guarantees thereof and the documentation in respect of
each letter of credit issued thereunder.
"MAJORITY NOTEHOLDERS" means, at any time, Holders representing at
least a majority of the aggregate principal amount of Outstanding Notes.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on any of
(a) the condition (financial or otherwise), business, performance, prospects,
operations or properties of any of the Parent and the Subsidiaries, taken as a
whole, (b) the legality, validity or enforceability of any Secured Debt
Document; (c) the perfection or priority of the Liens granted pursuant to the
Security Documents; (d) the ability of the Parent or any of the Subsidiaries to
repay the Obligations or perform its respective obligations under the Secured
Debt Documents; or (e) the ability of the Administrative Agent, the Indenture
Trustees or the Collateral Agent to enforce the rights and remedies under the
Secured Debt Documents.
"MATERIAL FOREIGN SUBSIDIARY" means, as to any Person, a Foreign
Subsidiary of such Person which, as of the last day of the most recently
completed fiscal quarter, satisfied any one or more of the following three
tests: (i) the amount of the Investments in such Foreign Subsidiary made by the
Parent and the Subsidiaries on or after the date hereof exceeds $5,000,000 in
the aggregate, (ii) the Parent's and the Subsidiaries' (other than such Foreign
Subsidiary's) proportionate share of Consolidated Total Assets (after
intercompany eliminations) consisting of the property of such Foreign Subsidiary
exceeds 2% of Consolidated Total Assets or (iii) the Parent's and the
Subsidiaries' (other than such Foreign Subsidiary's) equity in the income (not
to include losses) from continuing operations before income taxes, extraordinary
items and the cumulative effect of a change in accounting principles of such
Foreign Subsidiary exceeds 2% of the income (not to include losses) from
continuing operations before income taxes, extraordinary items and the
cumulative effect of a change in accounting principles of the Parent and the
Subsidiaries determined on a consolidated basis in accordance with GAAP.
"MATERIAL OBLIGATIONS" means Indebtedness (other than Indebtedness
under the Note Documents) or other obligations of any one or more of the Parent
or any of the Subsidiaries in an aggregate principal amount equal to or
exceeding $500,000. For purposes of determining Material Obligations, the
"principal amount" of the obligations of the Parent or any Subsidiary in respect
of any Hedging Contract at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that the Parent or any Subsidiary, as
applicable, would be required to pay if such Hedging Contract were terminated at
such time.
"MATURITY" means, with respect to any Note, the date on which any
principal of such Note becomes due and payable as provided therein or in this
Indenture, whether at the Stated Maturity with respect to such principal or by
declaration of acceleration, call for redemption, purchase or otherwise.
"MATURITY DATE" means [ ], 2009.
"MORTGAGE" means a mortgage, deed of trust, assignment of leases and
rents or other security document granting a Lien on any Mortgaged Property (as
defined in the Security Agreement) to secure the Obligations.
9
"NET CASH PROCEEDS" means proceeds received by any Note Party after
the date hereof in cash or Cash Equivalents from any: (a) Asset Sale in excess
of $2 million, net of (i) the reasonable cash costs of sale, assignment or other
disposition and (ii) taxes paid or payable as a result thereof or (b) Property
Loss Event; provided, however, that in the case of any Net Cash Proceeds arising
from a Property Loss Event in an amount less than $1,000,000, (i) if the Company
shall deliver a certificate of a financial officer thereof to the Collateral
Agent and the Trustee within 30 days after the date thereof setting forth such
Note Party's intent to use the proceeds of such Property Loss Event to repair or
replace the assets that are the subject thereof with, or otherwise purchase,
other assets to be used in the same line of business within 180 days of the
receipt of such Net Cash Proceeds and no Default shall have occurred and be
continuing at the time of such certificate or at the proposed time of the
application of such proceeds or (ii) the Majority Noteholders shall have
consented to such use in writing, such proceeds shall not constitute Net Cash
Proceeds except to the extent not so used at the end of such 180-day period, at
which time such proceeds shall be deemed Net Cash Proceeds.
"NON-MATERIAL FOREIGN SUBSIDIARY" means as to any Person at any time
of determination, a Foreign Subsidiary of such Person other than a Material
Foreign Subsidiary.
"NOTE CUSTODIAN" means any Person authorized by the Company to serve
as custodian with respect to the Notes in global form, or any successor entity
thereto.
"NOTE DOCUMENTS" means this Indenture, the Notes and the guarantees
thereof, the Senior Indenture, the Senior Notes and the guarantees thereof and
the Security Documents.
"NOTES" has the meaning set forth in the recitals to this Indenture.
"NOTE PARTIES" means the Company and the Guarantors.
"OBLIGATIONS" shall have the meaning set forth in the Security
Agreement.
"OFFICERS' CERTIFICATE" means a certificate signed by the Chairman
of the Board, the President or a Vice President, and by the Chief Financial
Officer, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee. One of the officers
signing an Officers' Certificate given pursuant to Section 10.27 shall be the
principal executive, financial or accounting officer of the Company.
"ONE-WAY CAPITAL EXPENDITURES" means, for any Person for any period,
the Capital Expenditures made by such Person for such period in respect of
one-way paging services.
"OPINION OF COUNSEL" means a written opinion of counsel, who may
(unless otherwise required by the Trust Indenture Act) be counsel for the
Company and who may rely as to factual matters on an Officers' Certificate, and
who shall be reasonably acceptable to the Trustee.
"OUTSTANDING," when used with respect to Notes, means, as of the
date of determination, all Notes theretofore authenticated and delivered under
this Indenture, except:
(a) Notes theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) Notes for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Notes; provided that if such Notes are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
and
10
(c) Notes in exchange for or in lieu of which other Notes have
been authenticated and delivered pursuant to this Indenture, other than
any such Notes in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Notes are held by a bona fide
purchaser in whose hands such Notes are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Notes owned by
the Company or any other obligor upon the Notes or any Affiliate of the Company
or of such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Notes which the Trustee actually knows to be so owned shall be so
disregarded. Notes so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Notes and that the
pledgee is not the Company or any other obligor upon the Notes or any Affiliate
of the Company or of such other obligor.
"PARENT" means Arch Wireless, Inc., a Delaware corporation.
"PAYING AGENT" means any Person authorized by the Company to pay the
principal of or interest on any Notes on behalf of the Company.
"PERMIT" means any permit, approval, authorization, license,
variance or permission required from a Governmental Authority under an
applicable Requirement of Law.
"PERSON" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"PROPERTY LOSS EVENT" means any loss of or damage to property of any
Note Party that results in the receipt by such Person of proceeds of insurance
or any taking of property of any Note Party that results in the receipt by such
Person of a compensation payment in respect thereof.
"REDEMPTION DATE," when used with respect to any Note to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"REDEMPTION PRICE," when used with respect to any Note to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"REGULAR RECORD DATE" for the interest payable on any Interest
Payment Date means the [ ] or [ ] (whether or not a Business Day),
as the case may be, next preceding such Interest Payment Date.
"REPRESENTATIVE" means the Trustee or other trustee, agent or
representative for any Senior Debt.
"REQUIREMENT OF LAW" means, with respect to any Person, the common
law and all federal, state, local and foreign laws, rules and regulations,
orders, judgments, decrees and other legal requirements or determinations of any
Governmental Authority or arbitrator, applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is
subject.
"RESELLER" means any Account Debtor who purchases paging devices
and/or network services for the purpose of reselling such devices and services.
"RESPONSIBLE OFFICER," when used with respect to the Trustee, means
an officer of the Trustee in the Corporate Trust Office assigned and duly
authorized by the Trustee to administer this
11
Indenture and when used with respect any other Person, any other officer to whom
a matter is referred because of his or her knowledge of and familiarity with a
particular subject.
"RESTRICTED PAYMENT" means: (a) any dividend or other distribution,
direct or indirect, on account of any Stock or Stock Equivalents of the Company
or any of its subsidiaries now or hereafter outstanding, except a dividend
payable solely in Stock or Stock Equivalents or a dividend or distribution
payable solely to the Company and/or one or more Subsidiary Guarantors; (b) any
redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any Stock or Stock Equivalents of
the Company or any of its subsidiaries now or hereafter outstanding other than
one payable solely to the Company and/or one or more Subsidiary Guarantors; and
(c) any payment or prepayment of principal, premium, if any, interest, fees
(including fees to obtain any waiver or consent) or other charges on, or
redemption, purchase, retirement, defeasance, sinking fund or similar payment
with respect to, any other Indebtedness of the Company or any of its
subsidiaries or any other Note Party which by its terms is subordinated to the
Notes, other than any required redemptions, retirement, purchases or other
payments, in each case to the extent permitted to be made by the terms of such
Indebtedness after giving effect to any applicable subordination provisions.
"RETAIL UNITS IN SERVICE" means Units in Service acquired through
any third party retailers.
"REVENUE" means, with respect to any Person for any period, an
amount equal to the revenue or earnings of such Person for such period
determined on a consolidated basis in conformity with GAAP.
"SECURED DEBT DOCUMENTS" means the Security Documents, the Loan
Documents, this Indenture, the Senior Indenture, the Notes and the Senior Notes.
"SECURED PARTIES" means the "Secured Parties" as defined in the
Security Agreement.
"SECURITY AGREEMENT" means the Security Agreement, substantially in
the form of Exhibit D, among the Note Parties, the Administrative Agent and the
Collateral Agent, for the benefit of the Secured Parties.
"SECURITY DOCUMENTS" means, collectively, all of the agreements,
instruments, documents, pledges or filings executed in connection with granting,
or that otherwise evidence, the Lien of the Collateral Agent in the Collateral,
including, without limitation, the Collateral Agent Agreement, the Security
Agreement and each Mortgage creating a Lien that secures the Notes and the
guarantees thereof, the Senior Notes and the guarantees thereof, and the Credit
Agreement, if any, and any other document, agreement, instrument, pledge or
filing executed in connection with the granting, or that otherwise evidence, the
Lien of the Collateral Agent on the Collateral.
"SENIOR DEBT" means:
(1) all Indebtedness outstanding under any Credit Agreement and all
Hedging Contracts with respect thereto;
(2) the Senior Notes;
(3) any other Indebtedness permitted to be incurred by the Company
under the terms of this Indenture that expressly provides that it is Senior
Debt; and
(4) all obligations of the Company with respect to the items listed
in the preceding clauses (1), (2) and (3).
12
"SENIOR INDENTURE" means the Indenture, dated as of [ ], 2002,
between the Note Parties and the Senior Indenture Trustee pursuant to which the
Company issued the Senior Notes.
"SENIOR INDENTURE TRUSTEE" means [ ], in its capacity as
trustee under the Senior Indenture, and any successor thereto.
"SENIOR NOTES" means the 10% Senior Subordinated Secured Notes due
2007 of the Company issued under the Senior Indenture.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 2.11.
"SRM REVENUE" means, with respect to any Person for any period, the
consolidated Revenue of such Person and its consolidated subsidiaries solely in
respect of the provision of network service for the rental and maintenance of
paging devices for such period.
"STATED MATURITY" means, when used with respect to any Note or any
installment of interest thereon, the date specified in such Note as the fixed
date on which the principal of such Note or such installment of interest is due
and payable.
"STOCK" means shares of capital stock (whether denominated as common
stock or preferred stock), beneficial, partnership or membership interests,
participations or other equivalents (regardless of how designated) of or in a
corporation, limited liability company, trust, joint venture, association,
company, partnership or other entity, whether voting or non-voting.
"STOCK EQUIVALENTS" means all securities convertible into or
exchangeable for Stock and all warrants, options or other rights to purchase or
subscribe for any Stock, whether or not presently convertible, exchangeable or
exercisable.
"SUBSIDIARY" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, trust, joint venture, association,
company, partnership or other entity of which securities or other ownership
interests representing more than 50% of the equity or more than 50% of the
ordinary voting power are or, in the case of a partnership, more than 50% of the
general partnership interests is, as of such date, owned, controlled or held by
the parent or one or more subsidiaries of the parent.
"SUBSIDIARY" means any subsidiary of the Parent; provided, however,
that:
(a) [for the period from the date hereof through the date which is
367 days after the later of (1) June 1, 2002 and (2) the termination of the
Asset Acquisition Agreement, dated as of January 24, 2001, by and among
Unrestricted Subsidiary Funding Company, the Parent, PageNet SMR Sub, Inc., and
AWI Spectrum Co., LLC, AWI Spectrum Co., LLC and AWI Spectrum Co. Holdings, Inc.
shall not be deemed to be Subsidiaries for purposes of this Indenture; provided
that on and after such date, each of AWI Spectrum Co., LLC and AWI Spectrum
Holdings, Inc. shall be deemed to be Subsidiaries for purposes of this
Indenture; and]
(b) any subsidiary of Paging Network Canadian Holdings, Inc. that
is organized under the laws of Canada or any province thereof and that is a
borrower under, or guarantor of, a credit facility existing on the date hereof
extended by one or more Canadian banks shall not be deemed to be a Subsidiary
for purposes of this Indenture; provided that on and after the date on which
such subsidiary ceases to be a borrower or guarantor, it shall be deemed to be a
Subsidiary for purposes of this Indenture.
13
"SUBSIDIARY GUARANTOR" means all of the current and future
Domestic Subsidiaries of the Parent other than the Company, [AWI Spectrum
Co., LLC and AWI Spectrum Co. Holdings, Inc.]
"TRIGGER DATE" means the date on which the Senior Notes are paid in
full.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"TRUST INDENTURE ACT" or "TIA" means the Trust Indenture Act of 1939
as in force at the date as of which this Indenture was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"TWO-WAY CAPITAL EXPENDITURES" means, for any Person for any period,
the Capital Expenditures made by such Person for such period in respect of
two-way paging services.
"UCC" means, at any time, the Uniform Commercial Code in effect in
the State of New York at such time.
"UNITS IN SERVICE" means, at any date: (a) messaging devices for
which messaging services are provided by the Parent and the Subsidiaries as of
such date directly to customers; and (b) messaging devices for which messaging
services are provided through a Reseller of the Parent and the Subsidiaries as
of such date, calculated in a manner consistent with the manner in which the
Parent determines Units in Service as of the date hereof.
"VICE PRESIDENT," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a word or a
number of words added before or after the title "vice president."
"VOTING STOCK" means Stock of any Person having ordinary power to
vote in the election of members of the Board of Directors of such Person
(irrespective of whether, at the time, Stock of any other class or classes of
such entity shall have or might have voting power by reason of the happening of
any contingency).
SECTION 1.02. OTHER DEFINITIONS.
Defined in
Term Section
---- -----------
"Act".............................................. 1.05
"Affiliate Transaction"............................ 10.14
"Asset Sale"....................................... 10.11
"Benefited Party".................................. 12.01
"Change of Control Offer".......................... 10.15
"Change of Control Purchase Price"................. 10.15
"Cumulative Consolidated SRM Revenue".............. 10.23
"Cumulative EBITDA"................................ 10.21
"CUSIP"............................................ 2.15
"Defaulted Interest"............................... 2.11
"Direct Customer Units in Service"................. 10.22
"Event of Default"................................. 4.01
"Note Register".................................... 2.04
"Paying Agent"..................................... 2.04
"Permitted Investments"............................ 10.10
"Permitted Liens".................................. 10.08
14
"Quarterly Consolidated SRM Revenue"............... 10.23
"Quarterly EBITDA"................................. 10.21
"Registrar"........................................ 2.04
"Six-Month Period"................................. 11.05
"Surviving Entity"................................. 7.01
SECTION 1.03. INCORPORATION BY REFERENCE OF THE TRUST INDENTURE ACT.
(a) Whenever this Indenture refers to a provision of the TIA,
the provision is incorporated by reference in and made a part of this
Indenture.
(b) The following TIA terms used in this Indenture have the
following meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
and
"obligor" on the Notes means the Company and any successor
obligor upon the Notes.
(c) All other terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by
Commission rule under the TIA have the meanings so assigned to them.
SECTION 1.04. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or Opinion of
Counsel, unless such officer knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to the
matters upon which such officer's certificate or opinion is based are erroneous.
Any such certificate or Opinion of Counsel may be based, insofar as it relates
to factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information with respect to
such factual matters is in the possession of the Company, unless such counsel
knows that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.05. ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by the
Majority Noteholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by the Majority Noteholders in
15
person or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"ACT" of the Majority Noteholders signing such instrument or instruments. Proof
of execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Section
5.01) conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company or the Trustee may, in the circumstances permitted
by the Trust Indenture Act, fix any day as the record date for the purpose of
determining the Holders entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action, or to vote on
any action, authorized or permitted to be given or taken by Holders, and the
Company agrees to notify the Trustee of any such fixing of a record date. If not
set by the Company or the Trustee prior to the first solicitation of a Holder
made by any Person in respect of any such action, or, in the case of any such
vote, prior to such vote, the record date for any such action or vote shall be
the 30th day (or, if later, the date of the most recent list of Holders required
to be provided pursuant to Section 6.01) prior to such first solicitation or
vote, as the case may be. With regard to any record date, only the Holders on
such date (or their duly designated proxies) shall be entitled to give or take,
or vote on, the relevant action.
(d) The ownership of Notes shall be proved by the Note Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Majority Noteholders shall bind every future Holder
of the same Note and the Holder of every Note issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such Note.
SECTION 1.06. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Notes, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders of Notes, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 1.07. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date, or
Stated Maturity of any Note shall not be a Business Day, then (notwithstanding
any other provision of this Indenture or of the Notes) payment of interest or
principal need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Interest Payment
Date, Redemption Date, or at the Stated Maturity; provided that no interest
shall accrue for the period from and after such Interest Payment Date,
Redemption Date, or Stated Maturity, as the case may be.
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ARTICLE II
THE NOTES
SECTION 2.01. TITLE AND TERMS.
The aggregate principal amount of Notes which may be authenticated
and delivered under this Indenture is limited to $100,000,000, except for Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes pursuant to Section 2.09, 2.10, 8.06 or 9.09.
The Notes shall be known and designated as the "12% Subordinated
Secured Compounding Notes due 2009" of the Company. The Stated Maturity of the
Notes shall be [ ], 2009. Interest on the Notes will accrue at a rate per
annum equal to 12%.
From the date of original issuance of the Notes through the Trigger
Date, interest on the Notes shall accrue and compound on the Compounded Value in
effect immediately prior to the applicable Interest Payment Date as if the
Compounded Value were principal. All references in this Indenture to principal
of the Notes as of any date shall mean the Compounded Value as of such date. The
Company shall notify the Trustee in writing of the aggregate amount of such
Compounded Value and such accrued and compounded interest not less than [5] and
no more than [45] days prior to the applicable Interest Payment Date.
On the Trigger Date, the Company shall notify the Trustee in writing
of the occurrence of the Trigger Date and of the Compounded Value as of such
date. From and after the Trigger Date, interest on the Notes shall be payable in
cash semi-annually in arrears on each Interest Payment Date based on the
Compounded Value as of the Trigger Date, which shall be the Compounded Value as
of the immediately prior Interest Payment Date. On the first Interest Payment
Date occurring after the Trigger Date, interest shall be paid on the Notes in
cash for the full prior Interest Period. Interest will accrue or be paid, as the
case may be, on each [ ] and [ ] commencing [ ], 2002, to the
persons in whose names the Notes are registered at the close of business on the
preceding [ ] or [ ], as the case may be. Interest will accrue from
the most recent Interest Payment Date to which interest has been paid or duly
provided for or, if no interest has been paid or duly provided for, from the
date of original issuance of the Notes. Interest will be computed on the basis
of a 360-day year of twelve 30-day months. If at any time an Event of Default
has occurred and is continuing, the Company shall pay interest on demand at a
rate that is 2% per annum in excess of the rate then in effect; it shall pay
interest on overdue installments of interest from time to time on demand at the
same rate to the extent lawful.
The principal of and interest on the Notes shall be payable at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, New York, maintained for such purpose and at any other office or agency
maintained by the Company for such purpose; provided, however, that at the
option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the Note
Register. Payment of the principal of on the Notes will be made upon the
presentation of the Notes at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan, The City of New York, New York.
The Notes shall be redeemable as provided in Article IX.
The Notes shall not have the benefit of any sinking fund
obligations.
The Notes shall be guaranteed pursuant to the terms of the Article
XII hereof and shall be secured pursuant to the terms of the Security Documents.
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SECTION 2.02. FORM AND DATING.
(a) GENERAL. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The Notes
may have notations, legends or endorsements required by law, stock exchange
rules or usage. Each Note shall be dated the date of its authentication. The
Notes shall be issued in fully registered form, without coupons, in
denominations of $1,000 and integral multiples thereof. The terms and provisions
contained in the Notes shall constitute, and are hereby expressly made, a part
of this Indenture, and the Company and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and to
be bound thereby.
(b) FORM OF NOTES. Notes issued in global form shall be
substantially in the form of Exhibit A attached hereto (including the Global
Note Legend and the "Schedule of Exchanges of Interests in Global Notes"
attached thereto). Notes issued in definitive form shall be substantially in the
form of Exhibit A attached hereto (but without including the Global Note Legend
and the "Schedule of Exchanges of Interests in Global Notes" attached thereto).
Each Global Note shall represent such of the outstanding Notes as shall be
specified therein, and each shall provide that it shall represent the aggregate
principal amount of outstanding Notes from time to time endorsed thereon and
that the aggregate principal amount of outstanding Notes represented thereby may
from time to time be reduced or increased, as appropriate, to reflect exchanges
and redemptions. Any endorsement of a Global Note to reflect the amount of any
increase or decrease in the amount of outstanding Notes represented thereby
shall be made by the Trustee or the Note Custodian, at the direction of the
Trustee, in accordance with written instructions given by the Holder thereof as
required by Section 2.07 hereof in such form as is reasonably satisfactory to
the Trustee.
(c) BOOK-ENTRY PROVISIONS. This Section 2.02 (c) shall only apply to
Global Notes deposited with the Trustee, as custodian for the Depositary.
Participants and indirect participants shall have no rights under this Indenture
with respect to any Global Note held on their behalf by the Depositary or by the
Trustee as the custodian for the Depositary or under such Global Note, and the
Depositary shall be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner of such Global Note for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Depositary or impair, as between the Depositary and its participants or
indirect participants, the Applicable Procedures or the operation of customary
practices of the Depositary governing the exercise of the rights of a holder of
a beneficial interest in any Global Note.
SECTION 2.03. EXECUTION AND AUTHENTICATION.
(a) One officer shall sign the Notes for the Company by manual
or facsimile signature.
(b) If an officer whose signature is on a Note no longer holds
that office at the time a Note is authenticated, the Note shall
nevertheless be valid.
(c) A Note shall not be valid until authenticated by the
manual signature of the Trustee. The signature shall be conclusive
evidence that the Note has been authenticated under this Indenture.
(d) The Trustee shall, upon a receipt of a Company Order
requesting that notes be authenticated by the Trustee authenticate Notes
for original issue.
(e) The Trustee may appoint an authenticating agent acceptable
to the Company to authenticate Notes. An authenticating agent may
authenticate Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes
18
authentication by such agent. An authenticating agent has the same rights
as an Agent to deal with Holders or an Affiliate of the Company.
SECTION 2.04. REGISTRAR, PAYING AGENT AND DEPOSITARY.
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("REGISTRAR") and an
office or agency where Notes may be presented for payment ("PAYING AGENT"). The
Registrar shall keep in a register of the Notes (the "NOTE REGISTER"), the names
and addresses of the Holders and of their transfer and exchange. The Company,
upon prior written notice to the Trustee, may appoint one or more co-registrars
and one or more additional paying agents. The term "Registrar" includes any
co-registrar and the term "Paying Agent" includes any additional paying agent.
The Company may change any Paying Agent or Registrar without notice to any
Holder. The Company shall notify the Trustee in writing of the name and address
of any Agent not a party to this Indenture. The Company or any of its
subsidiaries may act as Paying Agent or Registrar. The Company shall enter into
an appropriate agency agreement with any Agent not a party to this Indenture,
which shall incorporate the provisions of the Trust Indenture Act. Such
agreement shall implement the provisions of this Indenture that relate to such
Agent. The Company shall notify the Trustee of the name and address of such
Agent.
The Company initially appoints The Depository Trust Company to act
as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar
and Paying Agent and to act as Note Custodian with respect to the Global Notes.
SECTION 2.05. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee
to agree in writing that the Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium, if any, or interest, if any, on the Notes, and shall notify
the Trustee of any default by the Company in making any such payment. While any
such default continues, the Trustee may require a Paying Agent to pay all money
held by it to the Trustee. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company or a Subsidiary) shall have no further
liability for the money. If the Company or a Subsidiary acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of the Holders
all money held by it as Paying Agent. Upon any bankruptcy or reorganization
proceedings relating to the Company, the Trustee shall serve as Paying Agent for
the Notes.
SECTION 2.06. HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each Interest Payment Date and at such other times as the
Trustee may request in writing, a list in such form and as of such date or such
shorter time as the Trustee may allow, as the Trustee may reasonably require of
the names and addresses of the Holders and the Company shall otherwise comply
with TIA Section 312(a).
SECTION 2.07. TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES. When Definitive Notes
are presented by a Holder to the Registrar with a request (1) to register the
transfer of the Definitive Notes or (2) to exchange such Definitive Notes for an
equal principal amount of Definitive Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
its
19
requirements for such transactions are met; provided that any Definitive Notes
presented or surrendered for registration of transfer or exchange shall be duly
endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Registrar duly executed by the Holder thereof or by his
attorney duly authorized in writing.
(b) TRANSFER OF A DEFINITIVE NOTE FOR A BENEFICIAL INTEREST IN THE
GLOBAL NOTE. A Definitive Note may be exchanged for a beneficial interest in the
Global Note only upon receipt by the Trustee of a Definitive Note, duly endorsed
or accompanied by appropriate instruments of transfer, in form satisfactory to
the Trustee, together with written instructions directing the Trustee to make an
endorsement on the Global Note to reflect an increase in the aggregate principal
amount of the Notes represented by the Global Note.
(c) TRANSFER OF A BENEFICIAL INTEREST IN A GLOBAL NOTE FOR A
DEFINITIVE Note. A beneficial interest in the Global Note may be exchanged for a
Definitive Note only under the circumstances described in Section 2.07(g) and
upon receipt by the Trustee of written transfer instructions (or such other form
of instructions as is customary for the Depositary) from the Depositary (or its
nominee) on behalf of any Person having a beneficial interest in a Global Note
that such Note is being transferred, in which case the Trustee shall, in
accordance with the standing instructions and procedures existing between the
Depositary and the Trustee, cause the aggregate principal amount of the Global
Note to be reduced accordingly, and, following such reduction, the Company shall
execute and the Trustee shall authenticate and make available for delivery to
the transferee a Definitive Note in the appropriate principal amount.
(d) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE GLOBAL
NOTE. The transfer and exchange of beneficial interests in the Global Note shall
be effected through the Depositary in accordance with this Indenture and the
procedures of the Depositary therefor, which shall include restrictions on
transfer comparable to those set forth herein to the extent required by the
Securities Act of 1933, as amended.
When a Global Note is presented to the Registrar with a request (1)
to register the transfer of the Global Note or (2) to exchange such Global Notes
for an equal principal amount of Notes of other denominations, the Registrar
shall register the transfer or make the exchange if its requirements for such
transactions are met; provided, however, that any Note presented or surrendered
for registration of transfer or exchange shall be duly endorsed or accompanied
by a written instruction of transfer in form satisfactory to the Registrar and
the Trustee duly executed by the Holder thereof or by his attorney duly
authorized in writing. To permit registrations of transfer and exchanges, the
Company shall issue and the Trustee shall authenticate Notes at the Registrar's
request, subject to such rules as the Trustee may reasonably require.
(e) CANCELLATION AND/OR ADJUSTMENT OF THE GLOBAL NOTE. At such time
as all beneficial interests in the Global Note have either been exchanged for
Definitive Notes, redeemed, repurchased or canceled, the Global Note shall be
returned to or retained and canceled by the Trustee. At any time prior to such
cancellation, if any beneficial interest in the Global Note is exchanged for
Definitive Notes, redeemed, repurchased or canceled, the aggregate principal
amount of Notes represented by such Global Note shall be reduced accordingly and
an endorsement shall be made on such Global Note by the Trustee to reflect such
reduction.
(f) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES. To
permit registrations of transfers and exchanges effected in accordance with this
Indenture, the Company shall execute and the Trustee shall authenticate the
Global Note and any Definitive Notes at the Registrar's request. The Global Note
and any Definitive Notes issued upon any registration of transfer or exchange of
beneficial interests in the Global Note or the Definitive Notes shall be legal,
valid and binding obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Definitive Notes or
Global Notes surrendered upon such registration of transfer or exchange.
Neither the Company nor the Registrar shall be required to (a)
issue, register the transfer of or exchange Notes during a period beginning at
the opening of business on a Business Day 15 days
20
before the day of mailing of any notice of redemption of Notes under Section
9.06 hereof and ending at the close of business on the day of such mailing or
(b) register the transfer of or exchange any Note so selected for redemption in
whole or in part, except the unredeemed portion of any Note being redeemed in
part.
No service fee shall be charged to any Holder of a Note for any
registration of transfer or exchange (except as otherwise expressly permitted
herein), but the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than such transfer tax or similar governmental charge payable upon
exchanges pursuant to Sections 2.09, 2.10, 8.06 or 9.09 hereof, which shall be
paid by the Company).
Prior to due presentment to the Trustee for registration of the
transfer of any Note, the Trustee, any Agent and the Company may deem and treat
the Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and interest on such
Note and for all other purposes whatsoever, whether or not such Note is overdue,
and none of the Trustee, any Agent or the Company shall be affected by notice to
the contrary.
The Trustee shall authenticate Global Notes and Definitive Notes in
accordance with the provisions of Section 2.03 hereof.
All certifications, certificates and Opinions of Counsel required to
be submitted to the Registrar pursuant to this Section 2.07 to effect a
registration of transfer or exchange may be submitted by facsimile.
The Trustee is hereby authorized to enter into a letter of
representation with the Depositary in the form provided by the Company and to
act in accordance with such letter.
(g) GENERAL PROVISIONS RELATING TO GLOBAL NOTES. Notwithstanding any
other provision in this Indenture, no Global Note may be transferred to, or
registered or exchanged for Notes registered in the name of, any Person other
than the Depositary for such Global Note or any nominee thereof, and no such
transfer may be registered, unless (i) such Depositary (A) notifies the Company
that it is unwilling or unable to continue as Depositary for such Global Note or
(B) ceases to be a clearing agency registered under the Exchange Act, (ii) the
Company delivers to the Trustee an Officers' Certificate stating that such
Global Note shall be so transferable, registrable, and exchangeable, and such
transfers shall be registrable, or (iii) upon the request of a Holder if there
shall have occurred and be continuing an Event of Default with respect to the
Notes evidenced by such Global Note. Notwithstanding any other provision in this
Indenture, a Global Note to which the restriction set forth in the preceding
sentence shall have ceased to apply may be transferred only to, and may be
registered and exchanged for Notes registered only in the name or names of, such
Person or Persons as the Depositary for such Global Note shall have directed,
and no transfer thereof other than such a transfer may be registered. Every Note
authenticated and delivered upon registration of transfer of, or in exchange for
or in lieu of, a Global Note to which the restriction set forth in the first
sentence of this paragraph shall apply, whether pursuant to this Section 2.07 or
otherwise, shall be authenticated and delivered in the form of, and shall be, a
Global Note.
SECTION 2.08. LEGENDS.
The following legend shall appear on the face of all Global Notes
issued under this Indenture:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY
BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.07 OF THE INDENTURE,
(III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE
21
FOR CANCELLATION PURSUANT TO SECTION 2.13 OF THE INDENTURE AND (IV) THIS GLOBAL
NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT
OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("XXX"),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
SECTION 2.09. TEMPORARY NOTES.
Pending the preparation of Definitive Notes, the Company may
execute, and upon receipt of a Company Order the Trustee shall authenticate and
deliver, temporary Definitive Notes which shall be substantially in the form of
Definitive Notes in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Notes may determine, as evidenced by their execution of such
Notes.
If temporary Notes are issued, the Company will cause Definitive
Notes to be prepared without unreasonable delay. After the preparation of
Definitive Notes, the temporary Notes shall be exchangeable for Definitive Notes
upon surrender of the temporary Notes at any office or agency of the Company
designated pursuant to Section 10.02, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Notes, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of Definitive Notes of authorized denominations. Until so
exchanged the temporary Notes shall in all respects be entitled to the same
benefits under this Indenture as Definitive Notes.
SECTION 2.10. MUTILATED, DESTROYED, LOST AND STOLEN NOTES.
If any mutilated Note is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Note of like tenor and principal amount and bearing a certificate
number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Note and
(ii) such security or indemnity as may be required by them to save each of them
and any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Note has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Note, a new Note of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Note, pay such Note.
22
Upon the issuance of any new Note under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.11. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
On or before any Interest Payment Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 10.03) an
amount of money sufficient to pay the interest on all the Notes that is to be
paid on such Interest Payment Date. Interest on any Note which is payable, and
is punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Note is registered at the close of
business on the Regular Record Date for such interest.
Any interest on any Note which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"DEFAULTED INTEREST") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest shall be paid by the Company to the Persons in whose names
the Notes (or their respective predecessor Notes) are registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid on
each Note and the date of the proposed payment (which date shall be a date which
will enable the Trustee to comply with the provisions of the immediately
following sentence), and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as provided herein. The Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the date of the proposed payment
and not less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first-class postage prepaid, to each Holder at his
address as it appears in the Note Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Notes (or their
respective predecessor Notes) are registered at the close of business on such
Special Record Date. Subject to the foregoing provisions of this Section, each
Note delivered under this Indenture upon registration of transfer of, or in
exchange for or in lieu of, any other Note shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Note.
SECTION 2.12. PERSONS DEEMED OWNERS.
Prior to due presentment of a Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Note is registered as the owner of such Note for the
purpose of receiving payment of principal of and (subject to Section 2.11)
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interest on such Note and for all other purposes whatever, whether or not such
Note be overdue, and neither the Company nor the Trustee shall be affected by
notice to the contrary.
SECTION 2.13. CANCELLATION.
All Notes surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly canceled by it. The Company
may at any time deliver to the Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Notes so delivered shall be promptly canceled by the
Trustee. No Notes shall be authenticated in lieu of or in exchange for any Notes
canceled as provided in this Section, except as expressly permitted by this
Indenture. All canceled Notes held by the Trustee shall, unless the Trustee is
otherwise directed by a Company Order or by applicable law, be destroyed by the
Trustee, and certification of such destruction shall be delivered by the Trustee
to the Company promptly following any such destruction.
SECTION 2.14. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures ("CUSIP"), the Company may cause CUSIP
numbers to be printed on the Notes and may direct the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Holders of Notes. No
representation is made as to the accuracy of the CUSIP numbers either as printed
on the Notes or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon. The Company will
promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE III
SATISFACTION AND DISCHARGE
SECTION 3.01. SATISFACTION AND DISCHARGE OF INDENTURE.
Upon the written request of the Company, this Indenture will cease
to be of further effect, and the Trustee, at the expense of the Company, will
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when:
(1) either
(a) all the Notes theretofore authenticated and delivered (other
than (i) Notes which have been mutilated, destroyed, lost or stolen and which
have been replaced or paid as provided in Section 2.10) have been delivered to
the Trustee for cancellation; or
(b) all Notes not theretofore delivered to the Trustee for
cancellation have come due and payable, by reason of the making of a notice of
redemption or will otherwise become due and payable within one year and the
Company has irrevocably deposited or caused to be deposited with the Trustee
funds in trust for the purpose in an amount sufficient to pay and discharge the
entire Indebtedness on such Notes not theretofore delivered to the Trustee for
cancellation, for principal and interest to the date of such deposit (in the
case of Notes which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or shall occur as a result of such
deposit, and such deposit will not result in a breach or violation of, or
constitute a default under, any other instrument to which the Company is a
party or by which the Company is bound;
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(3) the Company has paid or caused to be paid all other sums
payable hereunder by the Company;
(4) the Company has delivered irrevocable instructions to the
Trustee under this Indenture to apply the deposited money and/or
non-callable Government Securities toward the payment of the Notes at
maturity or the redemption date, as the case may be; and
(5) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 5.07 and, the
obligations of the Trustee under Section 3.02 and the last paragraph of Section
10.03 shall survive.
SECTION 3.02. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 10.03,
all money and Government Securities (including the proceeds thereof) deposited
with the Trustee pursuant to Section 3.01 hereof in respect of the Outstanding
Notes shall be held in trust and applied by it, in accordance with the
provisions of the Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Persons entitled thereto, of the principal
and interest for whose payment such money has been deposited with the Trustee.
ARTICLE IV
REMEDIES
SECTION 4.01. EVENTS OF DEFAULT.
"EVENT OF DEFAULT," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any Governmental Authority):
(a) default in the payment of any interest on any Note when it
becomes due and payable and such default continues for a period of 30 days;
(b) default in the payment of the principal of any Note at its
Maturity (including pursuant to Section 9.02 hereof);
(c) the Parent or any of the Subsidiaries shall fail to observe or
perform any covenant, condition or agreement contained in Sections 10.07, 10.08,
10.09, 10.10, 10.11, 10.12, 10.13, 10.14, 10.15, 10.16, 10.19, 10.20, 10.21,
10.22, 10.23, 10.24 or 10.25, or any Note Party shall fail to observe or perform
any covenant, condition or agreement contained in the Security Documents to the
extent it is a party thereto;
(d) any Note Party shall fail to observe or perform any covenant,
condition or agreement contained in any Note Document to which it is a party
(other than those specified in clause (a), (b) or (d) of this Section 4.01), and
such failure shall continue unremedied for 30 days after the earlier of the date
on which (A) a Responsible Officer of the Parent becomes aware of such failure
or (B) written notice thereof shall have been given to the Parent by the Trustee
or the Majority Noteholders;
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(e) (i) any Note Party shall breach in any material respect any
representation or warranty or agreement in any of the Security Documents or in
any certificates delivered in connection therewith; (ii) the repudiation by any
of them of any of their obligations under any of the Security Documents; (iii)
the unenforceability of the Security Documents against any of them for any
reason which shall continue unremedied for 30 days after the earlier of the date
on which (A) a Responsible Officer of the Parent becomes aware of such failure
or (B) written notice thereof shall have been given to the Parent by the Trustee
or the Majority Noteholders; or (iv) the loss of the perfection or priority of
the Liens granted by any of them pursuant to the Security Documents for any
reason;
(f) the Parent or any of the Subsidiaries shall fail to make any
payment (whether of principal or interest and regardless of amount) in respect
of any Material Obligations, when and as the same shall become due and payable
(after giving effect to any applicable grace period);
(g) a default occurs under any Material Obligations which default
results in the acceleration of such Material Obligations prior to their
scheduled maturity or payment date or requires the prepayment, repurchase,
redemption or defeasance thereof, prior to their scheduled maturity or payment
date (in each case after giving effect to any applicable cure period); provided
that this clause (g) shall not apply to secured Indebtedness that becomes due
solely as a result of the voluntary sale or transfer of the property or assets
securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of the Parent or any of the Subsidiaries, or any of their debts, or
of a substantial part of any of their assets, under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Parent or any of the Subsidiaries or for
a substantial part of any of their assets, and, in any such case, such
proceeding or petition shall continue undismissed for 30 days or an order or
decree approving or ordering any of the foregoing shall be entered;
(i) the Parent or any of the Subsidiaries shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation, reorganization
or other relief under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (h) of this Section 4.01, (iii) apply
for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Parent or any of the
Subsidiaries or for a substantial part of any of their assets, (iv) file an
answer admitting the material allegations of a petition filed against it in any
such proceeding, (v) make a general assignment for the benefit of creditors or
(vi) take any action for the purpose of effecting any of the foregoing;
(j) one or more judgments for the payment of money in an aggregate
amount in excess of $1,000,000 shall be rendered against the Parent or any of
the Subsidiaries or any combination thereof (which shall not be fully covered by
insurance without taking into account any applicable deductibles) and the same
shall remain undischarged or unbonded for a period of 30 consecutive days during
which execution shall not be effectively stayed; or
(k) any Note Document shall cease, for any reason, to be in full
force and effect, or any Note Party shall so assert in writing or shall disavow
any of its obligations thereunder.
SECTION 4.02. ACCELERATION OF MATURITY; EXERCISE OF REMEDIES.
If an Event of Default (other than an Event of Default described in
clause (h) or (i) of Section 4.01), shall have occurred and be continuing, the
Trustee or the Majority Noteholders may, by notice to the Company, declare the
Notes then outstanding to be due and payable in whole (or in part, in which case
any principal not so declared to be due and payable may thereafter be declared
to be due and payable), and thereupon the principal of the Notes so declared to
be due and payable, together with accrued
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interest thereon and all fees and other obligations of each Note Party accrued
under the Note Documents, shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Company. In case of any Event of Default described in
clause (h) or (i) of Section 4.01, the principal of the Notes then outstanding,
together with accrued interest thereon and all fees and other obligations of
each Note Party accrued under the Note Documents, shall automatically become due
and payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Company; provided, however, that so long
as any Designated Senior Debt is outstanding, the acceleration shall not be
effective until the earlier of (i) an acceleration of any Designated Senior Debt
or (ii) five Business Days after receipt by the Company of written notice of the
acceleration of the Notes.
The Holders of the Notes shall not have the independent right to
direct the time, method or place of conducting any remedy available to the
Trustee or exercising any trust or power conferred upon the Trustee or, on
behalf of all Holders of Notes, to consent to the waiver of any past Default or
Event of Default or its consequences. All decisions regarding the declaration of
an Event of Default, the acceleration of the Notes, the waiver of any Defaults
and Events of Default, and the direction of the Collateral Agent and the Trustee
with respect to the exercise of rights and remedies against the Company, the
Guarantors and the Collateral shall be made by the Majority Noteholders. These
limitations do not apply to a suit instituted by a Holder of a Note for
enforcement of payment of any amounts then due as an unsecured claimant.
SECTION 4.03. WAIVER OF PAST DEFAULTS.
The Majority Noteholders by notice to the Trustee may, on behalf of
the Holders of all the Notes, waive an existing Default or Event of Default and
its consequences hereunder, except:
(1) an uncured default in the payment of principal or interest
on any Note, or
(2) a default in respect of a covenant or provision hereof
which under Article VIII cannot be modified or amended without the consent
of the Holder of each Outstanding Note affected thereby;
provided, however, that after any acceleration, but before a judgment or decree
based on acceleration is obtained by the Trustee, the Majority Noteholders may
rescind and annul such acceleration if all Events of Default, other than the
nonpayment of accelerated principal, premium or interest, have been cured or
waived as provided in this Indenture. Upon any such waiver, such Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent
thereon.
SECTION 4.04. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
Subject at all times to the provisions of Section 4.02, the Company
covenants that if an Event of Default specified in clauses (a) or (b) of Section
4.01 occurs and is continuing, the Company will, upon demand of the Trustee, pay
to it, for the benefit of the Holders of such Notes, the whole amount then due
and payable on such Notes for principal and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and on any overdue interest at the rate borne by the Notes, and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
Subject at all times to the provisions of Section 4.02, if an Event
of Default occurs and is continuing, the Trustee may in its discretion proceed
to protect and enforce its rights and the rights of the Holders by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
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SECTION 4.05. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to the Company (or any
other obligor upon the Notes), its creditors or its property and shall be
entitled and empowered to participate as a member, voting or otherwise, of any
official committee of creditors appointed in such matter and shall be entitled
and empowered to collect, receive and distribute any money or other property
payable or deliverable on any such claims, and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 5.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 5.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 4.06. APPLICATION OF MONEY COLLECTED.
Subject to the provisions of the Security Documents, any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money, on account of principal or interest upon
presentation of the Notes and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
5.07;
SECOND: To the payment of the amounts then due and unpaid for
principal of and interest on the Notes in respect of which or for
the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Notes for principal and interest respectively; and
THIRD: To the payment of the remainder, if any, to the Company, its
successors or assigns or to whomsoever may be lawfully entitled to
receive the same or as a court of competent jurisdiction may direct.
SECTION 4.07. LIMITATION ON SUITS.
Subject to Section 4.08, no Holder of any Note shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or to foreclose or
take any other action with respect to the Collateral or under any Security
Document or for any other remedy hereunder, under any Security Document unless:
(a) such Holder has previously given to the Trustee written
notice of a continuing Event of Default, and
(b) the Majority Noteholders have made a written request and
offered reasonable indemnity to the Trustee to institute such proceeding
as trustee.
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The preceding limitations do not apply to a suit instituted by a
Holder for enforcement of payment of the principal of, and premium, if any, or
interest on, a Note on or after the respective due dates expressed in such Note.
A Holder may not use this Indenture to affect, disturb or prejudice
the rights of another Holder or to obtain a preference or priority over another
Holder.
SECTION 4.08. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Note shall have the right, which is absolute and unconditional, to receive
payment of the principal of and (subject to Section 2.11) interest on such Note
on the respective Stated Maturities expressed in such Note (in the case of
redemption, on the Redemption Date) and to institute suit as an unsecured
claimant for the enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
SECTION 4.09. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 4.10. RIGHTS AND REMEDIES CUMULATIVE.
Subject to the provisions of Section 4.02 and except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Notes in the last paragraph of Section 2.10, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder or otherwise shall not prevent the concurrent assertion or employment
of any other appropriate right or remedy.
SECTION 4.11. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Note to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Subject to the provisions of Section 4.02, every right and
remedy given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
SECTION 4.12. CONTROL BY MAJORITY NOTEHOLDERS.
The Majority Noteholders shall have the right to direct the time,
method and place of conducting any proceeding for exercising any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee; provided that
(1) such direction shall not be in conflict with the Trust
Indenture Act or any rule of law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction or the Trust
Indenture Act.
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SECTION 4.13. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit (including reasonable
attorney's fees and expenses), and may assess costs against any such party
litigant, in the manner and to the extent provided in the Trust Indenture Act;
provided that neither this Section nor the Trust Indenture Act shall be deemed
to authorize any court to require such an undertaking or to make such an
assessment in any suit instituted by the Trustee or the Company.
SECTION 4.14. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE V
THE TRUSTEE
SECTION 5.01. CERTAIN DUTIES AND RESPONSIBILITIES.
The Trustee need perform only those duties that are specifically set
forth in this Indenture and no others. The duties and responsibilities of the
Trustee shall be as provided by the Trust Indenture Act. Notwithstanding the
foregoing, no provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it. Whether or not herein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 5.02. NOTICE OF DEFAULTS.
If a Default or an Event of Default occurs and is continuing and is
known to the Trustee, the Trustee shall mail to each Holder of the Notes notice
of the Default or Event of Default within 30 days after the occurrence thereof,
or, if later, promptly upon the Trustee obtaining knowledge thereof. Except in
the case of a Default or an Event of Default in payment of principal of or
interest on any Notes, the Trustee may withhold the notice to the Holders of
such Notes if its Board of Directors, executive committee or a committee of its
trust officers in good faith determines that withholding the notice is in the
interest of the Holders of the Notes.
SECTION 5.03. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 5.01:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting in reliance upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
30
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order, and
any resolution of the Board of Directors may be sufficiently evidenced by
a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, request from the Company and rely upon
an Officers' Certificate and/or an Opinion of Counsel;
(4) the Trustee may consult with counsel of its selection, and
the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Majority Noteholders pursuant to this Indenture,
unless the Majority Noteholders or the Holders shall have offered to the
Trustee reasonable security or joint and several indemnity against the
costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see
fit;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys, and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder;
(8) the Trustee shall not be liable for any action taken,
suffered or omitted to be taken by it in good faith in accordance with a
direction received by it pursuant to Section 4.12 and reasonably believed
by it to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture; and
(9) except with respect to Section 10.01, the Trustee shall
have no duty to inquire as to the performance of the Company with respect
to the covenants contained in Article X. In addition, the Trustee shall
not be deemed to have knowledge of an Event of Default except (i) any
Default or Event of Default occurring pursuant to Sections 4.01(a) or
4.01(b) or (ii) any Default or Event of Default of which the Trustee shall
have received written notification or obtained actual knowledge.
SECTION 5.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES.
The recitals contained herein and in the Notes, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Notes. The Trustee shall not be accountable for the use or application by
the Company of the Notes or the proceeds thereof.
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SECTION 5.05. MAY HOLD NOTES.
The Trustee, any Paying Agent, any Note Registrar or any other agent
of the Company, in its individual or any other capacity, may become the owner or
pledgee of Notes and, subject to Sections 5.08 and 5.13, may otherwise deal with
the Company with the same rights it would have if it were not Trustee, Paying
Agent, Note Registrar or such other agent.
SECTION 5.06. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
SECTION 5.07. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation
as the Company and the Trustee shall from time to time agree in writing
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance
with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel
(including local legal counsel), auditors, accountants, appraisers,
printers, insurance and environmental advisers, financial advisors and
other consultants and agents), except any such expense, disbursement or
advance as may be attributable to its gross negligence or willful
misconduct; and
(3) to indemnify each of the Trustee, its employees, officers,
directors and agents or any predecessor Trustee for, and to hold it
harmless against, any and all loss, liability, damage, claim or expense
incurred without gross negligence or willful misconduct on its part,
arising out of or in connection with the acceptance or administration of
this trust, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
All such payments and reimbursements shall be made with interest at
the rate borne by the Notes.
As security for the performance of the obligations of the Company
under this Section the Trustee shall have a Lien prior to the Notes upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the Holders of particular Notes.
The Company's obligations under this Section 5.07 and any Lien
arising hereunder shall survive the resignation or removal of any Trustee, the
discharge of the Company's obligations pursuant to this Indenture and/or the
termination of this Indenture.
SECTION 5.08. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
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SECTION 5.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of (a) at least $25,000,000 and be a member
of a bank holding company that has a combined capital and surplus of at least
$100,000,000 or (b) at least $50,000,000. If such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of any
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 5.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 5.11. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation or
removal, the Trustee resigning or being removed may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company.
(c) The Majority Noteholders may remove the Trustee by so notifying
the Trustee and the Company in writing.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 5.08 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Note for at least six months,
(2) the Trustee shall cease to be eligible under Section 5.09
and shall fail to resign after written request therefor by the Company or
by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 4.13, any Holder who has been a bona fide
Holder of a Note for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, the Majority Noteholders appoint a successor
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment, become the successor Trustee and supersede the successor
Trustee appointed by the Company. If no successor Trustee shall have been so
appointed by the Company or the Holders and shall have accepted appointment in
the manner hereinafter provided, any Holder who has been a bona fide Holder of a
Note for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee.
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(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 14.02. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 5.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder, subject to its Lien provided for in
Section 5.07. Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 5.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder; provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Notes shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Notes so authenticated with the same effect as if
such successor Trustee had itself authenticated such Notes.
SECTION 5.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Notes), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 5.14. APPOINTMENT OF CO-TRUSTEE.
It is the purpose of this Indenture that there shall be no violation
of any law of any jurisdiction, including particularly the law of the State of
New York, denying or restricting the right of banking corporations or
associations to transact business as Trustee in such jurisdiction. It is
recognized that in case of litigation under this Indenture, and in particular in
case of the enforcement on Default, or in case the Trustee deems that by reason
of any present or future law of any jurisdiction it may not exercise any of the
powers, rights or remedies herein granted to the Trustee or hold title to the
properties, in trust, as herein granted, or take any other action which may be
desirable or necessary in connection therewith, it may be necessary that the
Trustee appoint an additional individual or institution as a separate or
co-trustee. The following provisions of this Section 5.14 are adopted to these
ends.
In the event that the Trustee appoints an additional individual or
institution as a separate or co-trustee, each and every remedy, power, right,
claim, demand, cause of action, immunity, estate, title, interest and Lien
expressed or intended by this Indenture to be exercised by or vested in or
conveyed to the Trustee with respect thereto shall be exercisable by and vested
in such separate or co-trustee but only to the
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extent necessary to enable such separate or co-trustee to exercise such powers,
rights and remedies, and every covenant and obligation necessary to the exercise
thereof by such separate or co-trustee shall run to and be enforceable by such
separate or co-trustee.
Should any instrument in writing be required by the separate trustee
or co-trustee so appointed by the Trustee for more fully and certainly vesting
in and confirming to him or it such properties, rights, powers, trusts, duties
and obligations, any and all such instruments in writing shall, on request, be
executed, acknowledged and delivered by the Company. In case any separate
trustee or co-trustee, or a successor to either, shall die, become incapable of
acting, resign or be removed, all the estates, properties, rights, powers,
trusts, duties and obligations of such separate trustee or co-trustee, so far as
permitted by law, shall vest in and be exercised by the Trustee until the
appointment of a new trustee or successor to such separate trustee or
co-trustee.
ARTICLE VI
HOLDERS' LISTS AND REPORTS BY TRUSTEE
SECTION 6.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 5 Business Days after each
Regular Record Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of such Regular
Record Date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior
to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Registrar.
SECTION 6.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in
the most recent list furnished to the Trustee as provided in Section 6.01
and the names and addresses of Holders received by the Trustee in its
capacity as Registrar. The Trustee may destroy any list furnished to it as
provided in Section 6.01 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Notes, and
the corresponding rights and duties of the Trustee, shall be as provided
by the Trust Indenture Act.
(c) Every Holder of Notes, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by
reason of any disclosure of information as to names and addresses of
Holders made pursuant to the Trust Indenture Act.
SECTION 6.03. REPORTS BY TRUSTEE.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be
required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto. If required by Section 313(a) of the
Trust Indenture Act, the Trustee shall, within sixty days after each May
15 following the date of this
35
Indenture, deliver to Holders a brief report, dated as of such May 15,
which complies with the provision of such Section 313(a).
(b) A copy of each such report shall, at the time of such
transmission to Holders, be mailed to the Company and each stock exchange
upon which the Notes are listed in accordance with Section 313(d) of the
Trust Indenture Act. The Company will promptly notify the Trustee when the
Notes are listed on or delisted from any securities exchange.
ARTICLE VII
CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE
SECTION 7.01. CONSOLIDATION, ETC., ONLY ON CERTAIN TERMS.
The Company will not consolidate with or merge with or into any
other Person or convey, transfer or lease its properties and assets as an
entirety to any Person or Persons, and the Company will not permit any of its
subsidiaries to enter into any such transaction or series of transactions, if
such transaction or series of transactions, in the aggregate, would result in
the conveyance, transfer or lease of all or substantially all of the properties
and assets of the Company and its subsidiaries on a consolidated basis to any
Person, unless:
(a) such transaction is permitted by Article X hereof or
consented to by the Majority Noteholders; and
(b) either (i) the Company is the surviving corporation or
(ii) the Person (if other than the Company) formed by such consolidation
or into which the Company or such Subsidiary is merged or the Person which
acquires, by conveyance, transfer or lease, the properties and assets of
the Company or such Subsidiary, as the case may be, substantially as an
entirety (the "SURVIVING ENTITY") (A) shall be a corporation, partnership,
limited liability company or trust organized and validly existing under
the laws of the United States of America, any state thereof or the
District of Columbia and (B) shall expressly assume, by a supplemental
indenture executed and delivered to the Trustee, in form satisfactory to
the Trustee, the Company's obligation for the due and punctual payment of
the principal and interest on all the Notes and the performance and
observance of every covenant of this Indenture on the part of the Company
to be performed or observed.
In connection with any such consolidation, merger, conveyance,
transfer or lease, the Company or the Surviving Entity shall have delivered to
the Trustee, in form and substance reasonably satisfactory to the Trustee, an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease, and if a supplemental
indenture is required in connection with such transaction, such supplemental
indenture, comply with the requirements of this Section 7.01, and that all
conditions precedent herein provided for relating to such transaction have been
complied with.
SECTION 7.02. SUCCESSOR SUBSTITUTED.
Upon any transaction or series of transactions that are of the type
described in, and are effected in accordance with, conditions described in
Section 7.01, the Surviving Entity shall succeed to, and be substituted for, and
may exercise every right and power of, the Company under this Indenture with the
same effect as if such Surviving Entity had been named as the Company herein;
and when a Surviving Entity duly assumes all of the obligations and covenants of
the Company pursuant to this Indenture and the Notes, except in the case of a
lease, the predecessor Person shall be relieved of all such obligations.
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ARTICLE VIII.
SUPPLEMENTAL INDENTURES
SECTION 8.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by
a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of the
Company herein and in the Notes;
(b) to add to the covenants of the Company for the benefit of
the Holders, or to surrender any right or power herein conferred upon the
Company;
(c) to grant additional security for the Notes;
(d) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture; provided that such action pursuant
to this clause (d) shall not adversely affect the interests of the Holders
in any material respect;
(e) to name any Agent, Depositary or Registrar in accordance
with the terms hereof;
(f) to change the Trustee in accordance with the terms hereof;
or
(g) make any change to comply with any requirement of the
Commission in order to effect or maintain the qualification of this
Indenture under the TIA.
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental indenture, and
upon receipt by the Trustee of the documents described in Section 5.03 hereof,
the Trustee shall join with the Company in the execution of any amended or
supplemental indenture authorized or permitted by the terms of this Indenture
and to make any further appropriate agreements and stipulations that may be
therein contained, but the Trustee shall not be obligated to enter into such
amended or supplemental indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
SECTION 8.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS AND MAJORITY
NOTEHOLDERS.
With the consent of the Majority Noteholders, the Company, when
authorized by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders under this Indenture;
provided, however, that without the consent of the Holder of each Outstanding
Note affected thereby, no such supplemental indenture shall:
(a) change the Stated Maturity of the principal of, or any
installment of interest on, any Note, or reduce the principal amount
thereof or the rate of interest (including default interest) thereon or
change the place of payment where, or the currency in which, any Note or
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption Date); or
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(b) (i) change any provision of any Note Document in a manner
that would alter the pro rata sharing of payments among the Holders of the
Notes, (ii) change any of the provisions of this Section or the definition
of the term "Majority Noteholders" or any other provision hereof
specifying the number or percentage of Holders required to waive, amend or
modify any rights hereunder or make any determination or grant any consent
under any Note Document or this Indenture, (iii) release any Guarantor
from its Guarantee (except as expressly provided in Article XII hereof or
the Security Documents), or limit its liability in respect of such
Guarantee, or (iv) release all or substantially all of the Collateral from
the Liens of the Note Documents (except as expressly provided in the
Security Documents or in connection with a transaction permitted by
Section 10.09 and 10.11).
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental indenture, and
upon the filing with the Trustee of evidence satisfactory to the Trustee of the
consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of
the documents described in Section 5.03 hereof, the Trustee shall join with the
Company in the execution of such amended or supplemental indenture unless such
amended or supplemental indenture directly affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
amended or supplemental indenture.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed, the Holders on such record date,
or their duly designated proxies, and only such Persons, shall be entitled to
consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided that unless such consent shall have
become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
cancelled and of no further effect.
It shall not be necessary for any consent by the Majority
Noteholders under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall approve
the substance thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders at such Holder's address
appearing in the Note Register a notice briefly describing the amendment,
supplement or waiver. Any failure of the Company to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such amended or supplemental Indenture or waiver. Subject to Sections 4.03
and 4.08 hereof, the Majority Noteholders may waive compliance in a particular
instance by the Company with any provision of this Indenture or the Notes.
SECTION 8.03. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 5.01) shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 8.04. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture
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for all purposes; and every Holder of Notes theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 8.05. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 8.06. REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES.
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Notes so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Notes.
ARTICLE IX
REDEMPTION OF NOTES
SECTION 9.01. OPTIONAL REDEMPTION.
(a) After the Trigger Date, the Notes will be redeemable at the
election of the Company, as a whole or from time to time in part, at any time on
not less than 30 nor more than 60 days' prior notice, without premium or
penalty, at the Redemption Prices (expressed as percentages of Compounded Value)
set forth below together with accrued and unpaid interest, if any, thereon
redeemed to the applicable Redemption Date (subject to the right of holders of
record on relevant record dates to receive interest due on an Interest Payment
Date) if redeemed during the twelve-month period beginning on [ ] of the years
indicated below:
Year Percentage
---- ----------
2002 - 2006........................................... 106.0%
2007.................................................. 104.0%
2008.................................................. 102.0%
2009 ................................................. 100.0%
SECTION 9.02. MANDATORY PREPAYMENT; USE OF AVERAGE EXCESS CASH.
(a) After the Trigger Date, in the event and on each occasion that
any Net Cash Proceeds are received by or on behalf of the Company, on the next
succeeding Interest Payment Date, the Company shall redeem Notes in an amount
equal to the aggregate amount of such Net Cash Proceeds.
(b) After the Trigger Date, (i) on the date that is 10 days prior to
each Interest Payment Date, the Company shall calculate the Average Excess Cash
and (ii) on each Interest Payment Date, the Company shall redeem Notes in an
amount equal to 100% of the Average Excess Cash, if any.
(c) In connection with any mandatory redemption pursuant to this
Section 9.02, [ ] Business Days prior to the applicable Interest Payment Date,
the Company shall deliver to the Trustee a notice stating which portion of the
funds being delivered to the Trustee on such date constitute ordinary interest
payments and which portion constitutes the Redemption Price for such mandatory
redemption.
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SECTION 9.03. APPLICABILITY OF ARTICLE.
Redemption of Notes at the election of the Company or otherwise, as
permitted or required by any provision of this Indenture, shall be made in
accordance with such provision and this Article.
SECTION 9.04. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Notes pursuant to Section
9.01 shall be evidenced by a Board Resolution. In case of any redemption at the
election of the Company of the Outstanding Notes, the Company shall, at least 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee in writing of such
Redemption Date and of the principal amount of Notes to be redeemed.
SECTION 9.05. SELECTION BY TRUSTEE OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed at any time,
selection of Notes for redemption will be made by the Trustee in compliance with
the requirements of the principal national securities exchange, if any, on which
the Notes are listed, or, if the Notes are not so listed, on a pro rata basis or
in accordance with the Applicable Procedures; provided that no Notes of $1,000
principal amount or less shall be redeemed in part.
The Trustee shall promptly notify the Company and each Note
Registrar in writing of the Notes selected for redemption and, in the case of
any Notes selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Notes shall relate, in
the case of any Notes redeemed or to be redeemed only in part, to the portion of
the principal amount of such Notes which has been or is to be redeemed.
SECTION 9.06. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Notes to be redeemed, at such Holder's address appearing
in the Note Register.
All notices of redemption shall identify the Notes to be redeemed
(including CUSIP numbers) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Notes are to be redeemed,
the identification (and, in the case of partial redemption of any Notes,
the principal amounts) of the particular Notes to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Note to be redeemed and that, unless
the Company defaults on the payment of the Redemption Price, interest
thereon will cease to accrue on and after said date, and
(5) the place or places where such Notes are to be surrendered
for payment of the Redemption Price.
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Notice of redemption of Notes to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company; provided that the Company
has given the Trustee written notice of the Redemption Date and Redemption Price
at least 15 days prior to the date that such notice of redemption must be given
to the Holders.
SECTION 9.07. DEPOSIT OF REDEMPTION PRICE.
By 10:00 a.m., New York City time on the Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.03) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued and unpaid interest on, all the Notes which are to be redeemed on that
date.
SECTION 9.08. NOTES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Notes so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued and
unpaid interest) such Notes shall cease to bear interest. Upon surrender of any
such Note for redemption in accordance with said notice, such Note shall be paid
by the Company at the Redemption Price, together with accrued and unpaid
interest to the Redemption Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Notes, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 2.12.
If any Note called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid, bear interest
from the Redemption Date at the rate borne by the Note.
SECTION 9.09. NOTES REDEEMED IN PART.
Any Note which is to be redeemed only in part shall be surrendered
at an office or agency of the Company designated for that purpose pursuant to
Section 10.02 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Note, without service charge to
the Holder, a new Note or Notes, of any authorized denomination as requested by
such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Note so surrendered.
ARTICLE X
COVENANTS
SECTION 10.01. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company will duly and punctually pay the principal of and
interest on the Notes in accordance with the terms of the Notes and this
Indenture.
SECTION 10.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain an office or agency where Notes may be
presented or surrendered for payment, where Notes may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Notes and this Indenture may be
41
served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands. The Trustee
may resign any agency capacity under this Indenture upon 30 days' written notice
to the Company.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations. The
Company will give prompt written notice to the Trustee of any such designation
or remission and of any change in the location of any such other office or
agency.
SECTION 10.03. MONEY FOR NOTE PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent, it
will, on or before each due date of the principal of or, after the Trigger Date,
interest on any of the Notes, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents, it will,
prior to each due date of the principal of or, after the Trigger Date, interest
on any of the Notes, deposit with a Paying Agent a sum sufficient to pay the
principal or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal or interest, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of or interest on Notes in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Notes) in the making of any payment of
principal or interest; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of or interest on
any Note and remaining unclaimed for two years after such principal or interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Note shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying
42
Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, New York, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 10.04. EXISTENCE; CONDUCT OF BUSINESS.
The Parent will, and will cause each of the Subsidiaries to,
preserve and maintain its corporate existence, material rights (charter and
statutory) and material franchises except as permitted by Sections 10.09 and
10.11 hereof. The Parent will, and will cause each of the Subsidiaries to: (a)
conduct its business in the ordinary course; and (b) use its reasonable efforts,
in the ordinary course, to preserve its business and the goodwill and business
of the customers, advertisers, suppliers and others having business relations
with the Parent or such Subsidiary.
SECTION 10.05. PAYMENT AND PERFORMANCE OF OBLIGATIONS.
The Parent will, and will cause each of the Subsidiaries to, pay or
perform its material obligations, including tax liabilities before the same
shall become delinquent or in default, except where (a) the validity or amount
thereof is being contested in good faith by appropriate proceedings or (b) the
Parent or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP as then in effect.
SECTION 10.06. ADDITIONAL DOMESTIC SUBSIDIARIES; MATERIAL FOREIGN SUBSIDIARIES.
If any Domestic Subsidiary (other than the Company or a Domestic
Subsidiary that has executed a Guarantee and is a party to the Security
Documents) is formed or acquired after the date of this Indenture or a
Non-Material Foreign Subsidiary whose direct parent is a Domestic Subsidiary
becomes a Material Foreign Subsidiary, the Parent will notify the Trustee in
writing thereof not later than the fifth Business Day after the date on which
such Domestic Subsidiary is formed or acquired (or otherwise becomes a
Subsidiary for purposes of this Indenture) or such Non-Material Foreign
Subsidiary becomes a Material Foreign Subsidiary, as applicable, and, in
addition, the Parent will:
(a) (i) cause such new Domestic Subsidiary to execute and deliver a
Guarantee and (ii) cause such new Domestic Subsidiary and the direct parent of
such Material Foreign Subsidiary to become a party to each applicable Security
Document in the manner provided therein, in each case not later than the fifth
Business Day after the date on which such new Domestic Subsidiary is formed or
acquired (or otherwise becomes a Subsidiary for purposes of this Indenture) or
such Non-Material Foreign Subsidiary becomes a Material Foreign Subsidiary, as
applicable and (ii) promptly take such actions to create and perfect Liens on
such Subsidiary's assets as constitute Collateral to secure the Obligations as
the Majority Noteholders shall reasonably request; and
(b) if any Stock or Stock Equivalents issued by any such Subsidiary
or Material Foreign Subsidiary are owned or held by or on behalf of the Company
or any Guarantor or any loans, advances or other debt is owed or owing by any
such Subsidiary or Material Foreign Subsidiary to the Company or any Guarantor,
cause such Stock and Stock Equivalents and promissory notes and other
instruments evidencing such loans, advances and other debt to be pledged
pursuant to the Security Documents not later than the fifth Business Day after
the date on which such Subsidiary is formed or acquired (or otherwise becomes a
Subsidiary for purposes of this Indenture) or such Non-Material Foreign
Subsidiary becomes a Material Foreign Subsidiary.
43
SECTION 10.07. INDEBTEDNESS.
The Parent will not, and will not permit any of the Subsidiaries to,
directly or indirectly, create, incur, assume or otherwise become or remain
directly or indirectly liable with respect to any Indebtedness, except:
(a) Indebtedness represented by the Notes and the Senior Notes;
(b) the other Obligations;
(c) Indebtedness represented by any Credit Agreement;
(d) Indebtedness existing on the date of this Indenture;
(e) Guaranty Obligations incurred by the Company or any Guarantor in
respect of Indebtedness of the Company or any Guarantor otherwise permitted by
this Section 10.07;
(f) Indebtedness arising from intercompany loans from the Guarantors
to the Company or from the Company or any of its subsidiaries to any Guarantor;
provided, however, that the Investment in the intercompany loan to such
subsidiary is permitted under Section 10.10; or
(g) Indebtedness arising under any performance or surety bond
entered into in the ordinary course of business.
SECTION 10.08. LIENS.
The Parent will not, and will not permit any of the Subsidiaries to,
create or suffer to exist, any Lien upon or with respect to any of their
respective properties or assets, whether now owned or hereafter acquired, or
assign, or permit any of the Subsidiaries to assign, any right to receive
income, except for (collectively, the "PERMITTED LIENS"):
(a) Liens in favor of the Collateral Agent on behalf of the Secured
Parties created pursuant to the Security Documents; and
(b) Customary Permitted Liens of the Parent and the Subsidiaries.
SECTION 10.09. FUNDAMENTAL CHANGES.
The Parent will not, and will not permit any of the Subsidiaries to:
(a) merge with any Person; (b) consolidate with any Person; (c) acquire all or
substantially all of the Stock or Stock Equivalents of any Person; (d) acquire
all or substantially all of the assets of any Person or all or substantially all
of the assets constituting the business of a division, branch or other unit
operation of any Person; or (e) enter into any joint venture or partnership with
any Person; provided, however, that Subsidiaries other than the Company will be
permitted to merge with or be liquidated into another Note Party (other than the
Parent and AWCI).
SECTION 10.10. INVESTMENTS.
The Parent will not, and will not permit any of the Subsidiaries to,
directly or indirectly make or maintain any Investment except (collectively, the
"PERMITTED INVESTMENTS"):
(a) Investments existing on the date of this Indenture;
44
(b) Cash Equivalents held in a Cash Collateral Account or a Control
Account (each as defined in the Security Agreement) with respect to which the
Collateral Agent for the benefit of the Secured Parties has a first priority
perfected Lien;
(c) Accounts, Contract Rights and Chattel Paper (each as defined in
the Security Agreement), notes receivable and similar items arising or acquired
in the ordinary course of business of the Parent and the Subsidiaries; or
(d) Investments by (i) any Guarantor in the Company or in another
Guarantor which is a subsidiary of the Company; (ii) the Company in any
Guarantor which is a subsidiary of the Company; and (iii) the Company in
subsidiaries that are not Guarantors; provided, however, that the aggregate
outstanding amount of such Investments pursuant to this clause (d)(iii), shall
not exceed $100,000 at any time.
SECTION 10.11. ASSET SALES.
The Parent will not, and will not permit any of the Subsidiaries to,
sell, convey, transfer, lease or otherwise dispose of, any of their respective
assets or any interest therein (including the sale or factoring at maturity or
collection of any accounts) to any Person, or permit or suffer any other Person
to acquire any interest in any of their respective assets or, in the case of any
Subsidiary, issue or sell any shares of such Subsidiary's Stock or Stock
Equivalents (any such sale, conveyance, transfer, lease or other disposition
being an "ASSET SALE"), except:
(a) transactions permitted by Section 10.09 hereof;
(b) subject to Section 10.06 hereof, the sale, conveyance, transfer,
lease or other disposition of assets to a subsidiary of the Company which is a
Guarantor;
(c) the sale or disposition of or other use of inventory in the
ordinary course of the Parent's or the Subsidiaries' business;
(d) the collection, liquidation or otherwise disposition of Accounts
(as defined in the Security Agreement) in the ordinary course of the Parent's or
the Subsidiaries' business;
(e) the renegotiation and termination of leasehold interests in the
ordinary course of the Parent's or the Subsidiaries' business;
(f) the sale or disposition of obsolete or worn out fixtures and
equipment in the ordinary course of the Parent's or the Subsidiaries' business;
and
(g) the grant of easements and rights of way on Mortgaged Property
(as defined in the Security Agreement) or other real property in the ordinary
course of the Parent's or the Subsidiaries' business that do not secure any
monetary obligations and do not materially detract from the value of the
affected property or interfere with the ordinary conduct of the business of the
Parent and the Subsidiaries.
SECTION 10.12. RESTRICTED PAYMENTS.
The Parent will not, and will not permit any of the Subsidiaries to,
directly or indirectly, declare, order, pay, make or set apart any sum for any
Restricted Payment, except:
(a) Restricted Payments by any Subsidiary to the Company or any
Guarantor which is a subsidiary of the Company;
(b) Payments in respect of tax sharing among the Note Parties; and
45
(c) Restricted Payments by any Subsidiary to the Parent or Arch in
an aggregate amount not to exceed $[ ] in any Fiscal Year to enable the Parent
and Arch to pay ordinary course holding company expenses.
SECTION 10.13. PREPAYMENTS OF INDEBTEDNESS.
The Parent will not, and will not permit any of the Subsidiaries to,
prepay or obligate itself to prepay, in whole or in part, or voluntarily redeem
or otherwise retire prior to the maturity thereof, any Notes, except
(a) Notes may be prepaid, redeemed or otherwise retired as
permitted or required by Article IX of this Indenture;
(b) Notes may be prepaid, redeemed or otherwise retired in
exchange for common stock of the Parent; and
(c) Notes may be redeemed upon a Change of Control as required
by Section 10.15 hereof; provided that all of the Senior Notes tendered
(and not withdrawn) into the Change of Control Offer required by the
comparable provisions of the Senior Indenture have been purchased by the
Company prior to any such redemption of Notes.
SECTION 10.14. TRANSACTIONS WITH AFFILIATES.
The Parent will not, and will not permit any of the Subsidiaries to,
except as otherwise expressly permitted herein, do any of the following (each,
an "AFFILIATE TRANSACTION"):
(a) make any Investment in an Affiliate of the Parent which is not a
Subsidiary or a Guarantor;
(b) transfer, sell, lease, assign or otherwise dispose of any asset
to any Affiliate of the Parent which is not a Subsidiary or a Guarantor;
(c) merge into or consolidate with or purchase or acquire assets
from any Affiliate of the Parent which is not a Subsidiary or a Guarantor;
(d) repay any Indebtedness to any Affiliate of the Parent which is
not a Subsidiary or a Guarantor; or
(e) enter into any other transaction, directly or indirectly, with
or for the benefit of any Affiliate of the Parent which is not a Guarantor
(including guaranties and assumptions of obligations of any such Affiliate);
except for (i) transactions in the ordinary course of business on a basis no
less favorable to the Parent or such Guarantor as would be obtained in a
comparable arm's length transaction with a Person not an Affiliate and (ii)
salaries and other compensation to officers or directors of the Parent or any of
the Subsidiaries in the ordinary course of business.
SECTION 10.15. REPURCHASE UPON A CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, each Holder shall
have the right to require the Company to repurchase all or any part (equal to
$1,000 or an integral multiple of $1,000) of such Holder's Notes pursuant to the
offer described below (the "CHANGE OF CONTROL OFFER") at a purchase price (the
"CHANGE OF CONTROL PURCHASE PRICE") equal to 101% of the Compounded Value
thereof, plus accrued and unpaid interest, if any, to the purchase date (subject
to the right of Holders on the relevant record date to receive interest due on
the relevant Interest Payment Date).
46
Within 10 days following any Change of Control, the Company shall:
(i) send, by first-class mail, with a copy to the Trustee, to
each Holder, at such Holder's address appearing in the Note Register
maintained in respect of the Notes by the Registrar, a notice
stating:
(1) that a Change of Control has occurred and a Change of
Control Offer is being made pursuant to Section 10.15
and that all Notes timely tendered will be accepted for
payment;
(2) the Change of Control Purchase Price and the purchase
date, which shall be, subject to any contrary
requirements of applicable law, a Business Day no
earlier than 30 days nor later than 60 days from the
date such notice is mailed;
(3) the circumstances and relevant facts regarding the
Change of Control (including information with respect to
pro forma historical income, cash flow and
capitalization after giving effect to the Change of
Control); and
(4) the procedures that Holders must follow in order to
tender their Notes (or portions thereof) for payment,
and the procedures that Holders must follow in order to
withdraw an election to tender Notes (or portions
thereof) for payment.
The Company will comply, to the extent applicable, with the
requirements of Section 14(e)-1 of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Notes pursuant to a
Change of Control Offer. To the extent that the provisions of any securities
laws or regulations conflict with the provisions of the covenant described
hereunder, the Company will comply with the applicable securities laws and
regulations and will not be deemed to have breached its obligations under the
covenant described hereunder by virtue of such compliance.
(b) On the Change of Control Payment Date, the Company shall, to the
extent lawful:
(i) accept for payment all Notes or portions of Notes properly
tendered pursuant to the Change of Control Offer;
(ii) deposit with the Paying Agent an amount equal to the
Change of Control Payment in respect of all Notes or portions of
Notes properly tendered; and
(iii) deliver or cause to be delivered to the Trustee the
Notes properly accepted together with an Officers' Certificate
stating the aggregate principal amount of Notes or portions of Notes
being purchased by the Company.
(c) The Paying Agent shall promptly mail to each Holder of Notes
properly tendered the Change of Control Payment for such Notes, and the Trustee
will promptly authenticate and mail (or cause to be transferred by book-entry)
to each Holder a new Note equal in principal amount to any unpurchased portion
of the Notes surrendered, if any; provided that each new Note will be in a
principal amount of $1,000 or an integral multiple of $1,000.
(d) Notwithstanding the foregoing provisions of this Section 10.15,
no Notes may be purchased pursuant to such Change of Control Offer until all
Senior Notes tendered (and not withdrawn) into the Change of Control Offer
required by the comparable provisions of the Senior Indenture have been
purchased by the Company.
47
SECTION 10.16. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES.
The Parent shall not, and shall not permit any of the
Subsidiaries to, directly or indirectly, create or permit to exist or become
effective any restriction on the ability of any Subsidiary to (a) make any
Restricted Payment, (b) make loans or advances to the Parent or any of the
Subsidiaries or (c) transfer any of its properties or assets to the Parent or
any of the Subsidiaries.
The preceding restrictions will not apply to encumbrances or
restrictions existing under or by reason of:
(a) the Notes and the Senior Notes;
(b) this Indenture and the Senior Indenture;
(c) any Credit Agreement, if any;
(d) the Security Documents; and
(e) applicable law.
SECTION 10.17. COMPLIANCE WITH LAWS; ETC.
The Parent shall, and shall cause each of the Subsidiaries to,
comply with all applicable Requirements of Law, Contractual Obligations and
Permits, except where the failure so to comply would not in the aggregate have a
Material Adverse Effect.
SECTION 10.18. MAINTENANCE OF INSURANCE.
The Parent shall: (a) maintain, and cause to be maintained for
each of the Subsidiaries, insurance with responsible and reputable insurance
companies or associations in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning similar properties
in the same general areas in which the Parent or the Subsidiaries operate, and
such other insurance as may be reasonably requested by the Trustee, and, in any
event, all insurance required by any Note Document; and (b) cause all such
insurance to name the Collateral Agent on behalf of the Secured Parties as an
additional insured or loss payee, as appropriate, and to provide that no
cancellation, material addition in amount or material change in coverage shall
be effective until after 30 days' written notice thereof to the Trustee.
SECTION 10.19. CHANGE IN NATURE OF BUSINESS.
The Parent will not, and will not permit any of the
Subsidiaries to, make any material change in the nature or conduct of its
business as carried on at the date hereof.
SECTION 10.20. ACCOUNTING CHANGES; FISCAL YEAR.
The Parent will not, and will not permit any of the
Subsidiaries to, change their respective: (a) accounting treatment and reporting
practices or tax reporting treatment, except as required by GAAP or any
Requirement of Law and disclosed to the Trustee; or (b) Fiscal Year.
SECTION 10.21. MINIMUM EBITDA.
The Parent and the Subsidiaries shall have, as of the last day
of each quarter set forth below: (a) EBITDA for such quarter ("QUARTERLY
EBITDA"); and (b) EBITDA for the period commencing on [ , 2002] and ending on
the last day of such quarter ("CUMULATIVE EBITDA") of not less than the
following:
48
Minimum Cumulative
Quarter Ending Minimum Quarterly EBITDA EBITDA
-------------- ------------------------ ------
[ ], 2002
June 30, 2002
September 30, 2002
December 31, 2002
March 31, 2003
June 30, 2003
September 30, 2003
December 31, 2003
March 31, 2004
June 30, 2004
September 30, 2004
December 31, 2004
March 31, 2005
June 30, 2005
September 30, 2005
December 31, 2005
March 31, 2006
June 30, 2006
September 30, 2006
December 31, 2006
March 31, 2007
June 30, 2007
SECTION 10.22. MINIMUM DIRECT CUSTOMER UNITS IN SERVICE.
The Parent and the Subsidiaries will maintain a number of
Units in Service related to direct customers of the Company and its subsidiaries
for paging services (excluding any Retail Units in Service and any Units in
Service that are customers of Resellers) ("DIRECT CUSTOMER UNITS IN SERVICE") as
of the last day of the quarter, not less than as set forth opposite such day:
Quarter Ending Minimum Direct Customer
Units in Service
[ ], 2002
June 30, 2002
September 30, 2002
December 31, 2002
March 31, 2003
49
Quarter Ending Minimum Direct Customer
Units in Service
June 30, 2003
September 30, 2003
December 31, 2003
March 31, 2004
June 30, 2004
September 30, 2004
December 31, 2004
March 31, 2005
June 30, 2005
September 30, 2005
December 31, 2005
March 31, 2006
June 30, 2006
September 30, 2006
December 31, 2006
March 31, 2007
June 30, 2007
SECTION 10.23. MINIMUM TOTAL CONSOLIDATED REVENUES.
The Parent and the Subsidiaries shall maintain, as of the last
day of each quarter set forth below: (a) consolidated SRM Revenue for such
quarter ("QUARTERLY CONSOLIDATED SRM REVENUE"); and (b) consolidated SRM Revenue
for the period commencing on [ , 2002] and ending on the last day of such
quarter ("CUMULATIVE CONSOLIDATED SRM REVENUE"), of not less than the following:
Quarter Ending Minimum Quarterly Consolidated Minimum Cumulative
SRM Revenue Consolidated SRM Revenue
[ ] , 2002
June 30, 2002
September 30, 2002
December 31, 2002
March 31, 2003
June 30, 2003
September 30, 2003
December 31, 2003
March 31, 2004
50
Quarter Ending Minimum Quarterly Consolidated Minimum Cumulative
SRM Revenue Consolidated SRM Revenue
June 30, 2004
September 30, 2004
December 31, 2004
March 31, 2005
June 30, 2005
September 30, 2005
December 31, 2005
March 31, 2006
June 30, 2006
September 30, 2006
December 31, 2006
March 31, 2007
June 30, 2007
SECTION 10.24. NON-DEVICE CAPITAL EXPENDITURES.
The Parent and the Subsidiaries will not permit: (a) One-Way
Capital Expenditures (other than such One-Way Capital Expenditures made in
respect of the purchase or lease of paging devices); and (b) Two-Way Capital
Expenditures (other than such Two-Way Capital Expenditures made in respect of
the purchase or lease of paging devices) to be made or incurred during the
period from [ , 2002] through the end of such quarter set forth below to be in
excess of the maximum amount set forth below for such quarter:
Quarter Ending Maximum Cumulative One Way Maximum Cumulative Two Way
Capital Expenditures Capital Expenditures
[ ], 2002
June 30, 2002
September 30, 2002
December 31, 2002
March 31, 2003
June 30, 2003
September 30, 2003
December 31, 2003
March 31, 2004
June 30, 2004
September 30, 2004
December 31, 2004
51
Quarter Ending Maximum Cumulative One Way Maximum Cumulative Two Way
Capital Expenditures Capital Expenditures
March 31, 2005
June 30, 2005
September 30, 2005
December 31, 2005
March 31, 2006
June 30, 2006
September 30, 2006
December 31, 2006
March 30, 2007
June 30, 2007
provided that any commitments for such One-Way Capital Expenditures or Two-Way
Capital Expenditures in excess of $[ ], individually or in the aggregate and in
one transaction or a series of related transactions, shall require the prior
approval of the Board of Directors of the Parent.
SECTION 10.25. DEVICE CAPITAL EXPENDITURES.
The Parent and the Subsidiaries will not permit: (a) One-Way
Capital Expenditures made in respect of the purchase or lease of paging devices;
and (b) Two-Way Capital Expenditures made in respect of the purchase or lease of
paging devices to be made or incurred for the period from [ , 2002] through the
end of each of the quarters set forth below to be in excess of the maximum
amount set forth below for such quarter:
Quarter Ending Maximum Cumulative One Way Maximum Cumulative Two Way
Capital Expenditures Capital Expenditures
[ ] , 2002
June, 30, 2002
September 30, 2002
December 31, 2002
March 31, 2003
June 30, 2003
September 30, 2003
December 31, 2003
March 31, 2004
June 30, 2004
September 30, 2004
December 31, 2004
52
Quarter Ending Maximum Cumulative One Way Maximum Cumulative Two Way
Capital Expenditures Capital Expenditures
March 31, 2005
June 30, 2005
September 30, 2005
December 31, 2005
March 31, 2006
June 30, 2006
September 30, 2006
December 31, 2006
March 31, 2007
June 30, 2007
provided [that inventory of all paging devices held for sale during such quarter
must not exceed total sales of all new paging devices held for sale for the
immediately preceding quarter;[1] provided, further, that any commitments for
such One-Way Capital Expenditures or Two-Way Capital Expenditures in excess of
$[ ], individually or in the aggregate and in one transaction or a series of
related transactions, shall require the prior approval of the Board of Directors
of the Parent.
SECTION 10.26. PROVISION OF FINANCIAL STATEMENTS.
So long as any Notes are outstanding, the Company shall
furnish to the Trustee and the Holders of the Notes, on the date the Company is
required to file such information with the Commission (a) all quarterly and
annual financial information that would be required to be contained in a filing
with the Commission on Forms 10-Q and 10-K if the Company were required to file
such forms, including a "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and, with respect to the annual information
only, a report on the annual financial statements by the Company's certified
independent accountants and (b) all current reports that would be required to be
filed with the Commission on Form 8-K if the Company were required to file such
reports.
In addition, the Company shall file a copy of all information
and reports referred to in clauses (a) and (b) above with the Commission for
public availability within the time periods specified in the Commission's rules
and regulations (unless the Commission will not accept that filing) and make
that information available to securities analysts and prospective investors upon
request.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only, and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
(1) Please note that an alternative formulation for this sentence is currently
being considered and a proposal will follow in the next draft.
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SECTION 10.27. STATEMENT BY OFFICERS AS TO DEFAULT; NOTICE OF DEFAULT.
(a) The Company will deliver to the Trustee, within 90 days
after the end of each Fiscal Year of the Company ending after the date hereof,
an Officers' Certificate, stating whether or not to the knowledge of the signers
thereof the Company is in compliance with all the terms, provisions, covenants
and conditions of this Indenture and if the Company shall be in Default under
this Indenture, specifying all such Defaults and the nature and status thereof
of which they may have knowledge and including the information referred to in
clause (i) of subsection (b) below.
(b) The Company will deliver to the Trustee within 45 days
after the end of each Fiscal Quarter of any Fiscal Year, an Officers'
Certificate (i) demonstrating compliance with each of the financial covenants
contained in this Article X which is tested on a quarterly basis, and (ii)
stating that no Default or Event of Default has occurred and is continuing or,
if a Default or Event of Default has occurred and is continuing, stating the
nature thereof and the action which the Company proposes to take with respect
thereto.
(c) The Company will, so long as any of the Notes are
Outstanding, deliver to the Trustee, within five Business Days of becoming aware
of any Default or Event of Default in the performance of any covenant, agreement
or condition in this Indenture, an Officers' Certificate specifying such Default
or Event of Default.
ARTICLE XI
COLLATERAL
SECTION 11.01. COLLATERAL.
In order to secure the due and punctual payment of the
Obligations, the Company and the Guarantors will grant security interests in and
mortgages on their right, title and interest in and to the Collateral to the
Collateral Agent pursuant to the Security Documents no later than the date of
the first issuance of Notes under this Indenture. At the time the Security
Documents are executed, the Company and the Guarantors will have full right,
power and lawful authority to grant, bargain, sell, release, convey,
hypothecate, assign, mortgage, transfer and confirm, absolutely, the property
constituting the Collateral in the manner and form evidenced by the Security
Documents, and will for so long as any Notes are outstanding, warrant and defend
the title to the same against the claims of all Persons whatsoever unless the
Collateral is released as provided herein or in the Security Documents. The
claims of the Trustee and the Holders of the Notes against the Collateral will
be subject to the terms and provisions of the Security Documents.
SECTION 11.02. RECORDING AND OPINIONS.
The Company and the Guarantors will cause, at their own
expense, the Security Documents and all amendments or supplements thereto to be
registered, recorded and filed or re-recorded, refiled and renewed in such
manner and in such place or places, if any, as may be required by law in order
fully to preserve and protect the Liens created by the Security Documents on all
parts of the Collateral.
The Company and the Guarantors shall furnish to the Trustee:
(a) promptly after the execution and delivery of the Security
Documents (at any time after the initial issuance of the Notes), an Opinion of
Counsel either (i) stating that, in the opinion of such counsel, the assignment
of the Collateral intended to be made by the Security Documents and all other
instruments of further assurance or amendment have been properly recorded,
registered and filed to the extent necessary to make effective the Lien intended
to be created by the Security Documents, and reciting the details of such action
or referring to prior opinions of counsel in which such details are given, and
stating that as to the Security Documents such recording, registering and filing
are the only recordings,
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registerings and filings necessary to give notice thereof and that no
re-recordings, re-registerings or re-filings are necessary to maintain such
notice, and further stating that all financing statements, continuation
statements and other instruments have been executed and filed that are necessary
fully to preserve and protect the rights of the Holders and the Trustee
hereunder and under the Security Documents, or (ii) stating that, in the opinion
of such counsel, no such action is necessary to make such Lien and assignment
effective; and
(b) within 30 days after May 1 in each year beginning with May
1, 2003, an Opinion of Counsel, dated as of such date, either (i) stating that,
in the opinion of such counsel, such action has been taken with respect to the
recording, registering, filing, re-recording, re-registering and re-filing of
all supplemental indentures, financing statements, continuation statements or
other instruments of further assurance as are necessary to maintain the Lien of
the Security Documents and reciting the details of such action or referring to
prior opinions of counsel in which such details are given, and stating that all
financing statements and continuation statements have been executed and filed
that are necessary fully to preserve and protect the rights of the Holders and
the Trustee hereunder and under the Security Documents, or (ii) stating that, in
the opinion of such counsel, no such action is necessary to maintain such lien
and assignment.
SECTION 11.03. POSSESSION AND USE OF COLLATERAL.
(a) So long as no Event of Default has occurred and is
continuing, the Company and the Guarantors will have the right to remain in
possession and retain exclusive control over the Collateral, to freely operate
the Collateral and to collect, invest and dispose of the income therefrom.
(b) Nothing in this Indenture or any of the Security Documents
shall prohibit the Company or any Guarantors from transferring, by conveyance or
otherwise, subject to the Lien of the Security Documents, any of the assets
constituting the Collateral to any Guarantor, for so long as the Guarantor
remains a Guarantor, without any release or consent of the Trustee or the
Majority Noteholders.
SECTION 11.04. RELEASE AND DISPOSITION OF COLLATERAL.
The Collateral shall be released from the Lien of the Security
Documents as expressly provided therein or in connection with any transaction
permitted by Section 10.11 of this Indenture.
To the extent applicable, the Company shall cause TIA Section
314(d) relating to the release of property from the Lien of the Security
Documents to be complied with. Any certificate or opinion required by TIA
Section 314(d) may be made by an officer of the Company, except in cases in
which TIA Section 314(d) requires that such certificate or opinion be made by an
independent Person.
The release of any Collateral from the terms hereof and of the
Security Documents pursuant to the terms of the Security Documents or this
Indenture will not be deemed to impair the security under this Indenture in
contravention of the provisions hereof.
SECTION 11.05. DISPOSITION OF COLLATERAL WITHOUT RELEASE.
(a) In addition to and without limiting the
provisions of Section 11.04 and subject to Section 10.11, at any time
and from time to time, the Company and any Guarantors may without any
release or consent of the Trustee or the Majority Noteholders:
(i) sell, dispose of or otherwise use
inventory in the ordinary course of the Company's or
the Guarantors' business;
(ii) collect, liquidate or otherwise dispose
of Accounts (as defined in the Security Agreement) in
the ordinary course of the Company's or the
Guarantors' business;
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(iii) renegotiate and terminate leasehold
interests in Collateral in the ordinary course of the
Company's or the Guarantors' business;
(iv) sell or dispose of obsolete or worn out
fixtures and equipment which are Collateral in the
ordinary course of the Company's or the Guarantors'
business; and
(v) grant easements and rights of way on
Mortgaged Property (as defined in the Security
Agreement) in the ordinary course of the Company's or
the Guarantors' business that do not secure any
monetary obligations and do not materially detract
from the value of the affected property or interfere
with the ordinary conduct of the business of the
Company and the Guarantors.
(b) The Company's and the Guarantors' right to rely
upon subsection (a) of this Section for each six-month period beginning
on [January 1] and [July 1] (a "SIX-MONTH PERIOD") shall be conditioned
upon the Company and the Guarantors delivering to the Trustee and the
Collateral Agent, within 30 days following the end of such Six-Month
Period, an Officers' Certificate to the effect that all sales of
inventory, all collections and other dispositions of Accounts (as
defined in the Security Agreement) and any other disposition
contemplated by Section 11.05(a) by the Company and the Guarantors
during such Six-Month Period were in the ordinary course of the
Company's and the Guarantors' business and that all proceeds therefrom
were used by the Company and the Guarantors in the ordinary course of
their business or to make other cash payments permitted by this
Indenture.
ARTICLE XII
GUARANTEES
SECTION 12.01. GUARANTEES.
Subject to this Article XII, each of the Guarantors hereby,
jointly and severally, unconditionally guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns, irrespective of the validity and enforceability of this Indenture,
the Notes or the obligations of the Company hereunder or thereunder, that: (a)
the principal of, premium, if any, and interest on the Notes shall be promptly
paid in full when due, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal of and interest on the Notes,
if any, if lawful, and all other obligations of the Company to the Holders or
the Trustee hereunder or thereunder shall be promptly paid in full or performed,
all in accordance with the terms hereof and thereof; and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other
obligations, that same shall be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration pursuant to Section 4.02 hereof or otherwise. Failing
payment when due of any amount so guaranteed or any performance so guaranteed
for whatever reason, the Guarantors shall be jointly and severally obligated to
pay the same immediately. Each Guarantor agrees that this is a guarantee of
payment and not a guarantee of collection.
Each Guarantor hereby agrees that its obligations with regard
to this Guarantee shall be joint and several and unconditional, irrespective of
the validity or enforceability of the Notes or the obligations of the Company
under this Indenture, the absence of any action to enforce the same, the
recovery of any judgment against the Company or any other obligor with respect
to this Indenture, the Notes or the Obligations of the Company under this
Indenture or the Notes, any action to enforce the same or any other
circumstances (other than complete performance) which might otherwise constitute
a legal or equitable discharge or defense of a Guarantor. Each Guarantor
further, to the extent permitted by law, waives and relinquishes all claims,
rights and remedies accorded by applicable law to guarantors and agrees not to
assert or take advantage of any such claims, rights or remedies, including but
not limited to: (a) any right to require any of the Trustee, the Holders or the
Company (each a "BENEFITED PARTY"), as a condition
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of payment or performance by such Guarantor, to (i) proceed against the Company,
any other guarantor (including any other Guarantor) of the Obligations under the
Guarantees or any other Person, (ii) proceed against or exhaust any security
held from the Company, any such other guarantor or any other Person, (iii)
proceed against or have resort to any balance of any deposit account or credit
on the books of any Benefited Party in favor of the Company or any other Person,
or (iv) pursue any other remedy in the power of any Benefited Party whatsoever;
(b) any defense arising by reason of the incapacity, lack of authority or any
disability or other defense of the Company including any defense based on or
arising out of the lack of validity or the unenforceability of the Obligations
under the Guarantees or any agreement or instrument relating thereto or by
reason of the cessation of the liability of the Company from any cause other
than payment in full of the Obligations under the Guarantees; (c) any defense
based upon any statute or rule of law which provides that the obligation of a
surety must be neither larger in amount nor in other respects more burdensome
than that of the principal; (d) any defense based upon any Benefited Party's
errors or omissions in the administration of the Obligations under the
Guarantees, except behavior which amounts to bad faith; (e)(i) any principles or
provisions of law, statutory or otherwise, which are or might be in conflict
with the terms of the Guarantees and any legal or equitable discharge of such
Guarantor's obligations hereunder, (ii) the benefit of any statute of
limitations affecting such Guarantor's liability hereunder or the enforcement
hereof, (iii) any rights to set-offs, recoupments and counterclaims and (iv)
promptness, diligence and any requirement that any Benefited Party protect,
secure, perfect or insure any security interest or Lien on any property subject
thereto; (f) notices, demands, presentations, protests, notices of protest,
notices of dishonor and notices of any action or inaction, including acceptance
of the Guarantees, notices of default under the Notes or any agreement or
instrument related thereto, notices of any renewal, extension or modification of
the Obligations under the Guarantees or any agreement related thereto, and
notices of any extension of credit to the Company and any right to consent to
any thereof; (g) to the extent permitted under applicable law, the benefits of
any "One Action" rule and (h) any defenses or benefits that may be derived from
or afforded by law which limit the liability of or exonerate guarantors or
sureties, or which may conflict with the terms of the Guarantees. Each Guarantor
hereby covenants that its Guarantee shall not be discharged except by complete
performance of the obligations contained in its Guarantee and this Indenture.
If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Guarantors or any custodian, trustee,
liquidator or other similar official acting in relation to either the Company or
the Guarantors, any amount paid either to the Trustee or such Holder, this
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.
Each Guarantor agrees that it shall not be entitled to any
right of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby.
Each Guarantor further agrees that, as between the Guarantors, on the one hand,
and the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Section 4.02
hereof for the purposes of this Guarantee, notwithstanding any stay, injunction
or other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby and (y) in the event of any declaration of acceleration of
such obligations as provided in Section 4.02 hereof, such obligations (whether
or not due and payable) shall forthwith become due and payable by the Guarantors
for the purpose of this Guarantee. The Guarantors shall have the right to seek
contribution from any non-paying Guarantor so long as the exercise of such right
does not impair the rights of the Holders under the Guarantee.
SECTION 12.02. SUBORDINATION OF GUARANTEE.
The Obligations of each Guarantor under its Guarantee pursuant
to this Article XII shall be junior and subordinated to the Senior Debt of such
Guarantor on the same basis as the Notes are junior and subordinated to Senior
Debt of the Company. For the purposes of the foregoing sentence, the Trustee and
the Holders shall have the right to receive and/or retain payments by any of the
Guarantors only at such times as they may receive and/or retain payments in
respect of the Notes pursuant to this Indenture, including Article XII hereof.
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SECTION 12.03. LIMITATION ON GUARANTOR LIABILITY.
Each Guarantor, and by its acceptance of Notes, each Holder,
hereby confirms that it is the intention of all such parties that the Guarantee
of such Guarantor not constitute a fraudulent transfer or conveyance for
purposes of the Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the
extent applicable to any Guarantee. To effectuate the foregoing intention, the
Trustee, the Holders and the Guarantors hereby irrevocably agree that the
obligations of such Guarantor under this Article XII shall be limited to the
maximum amount as shall, after giving effect to such maximum amount and all
other contingent and fixed liabilities of such Guarantor that are relevant under
such laws, including, if applicable, its guarantee of all obligations under any
Credit Agreement, and after giving effect to any collections from, rights to
receive contribution from or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other Guarantor under this
Article XII, result in the obligations of such Guarantor under its Guarantee not
constituting a fraudulent transfer or conveyance.
SECTION 12.04. EXECUTION AND DELIVERY OF GUARANTEE.
To evidence its Guarantee set forth in Section 12.01 hereof,
each Guarantor hereby agrees that a notation of such Guarantee in substantially
the form included in Exhibit B shall be endorsed by an officer of such Guarantor
on each Note authenticated and delivered by the Trustee and that this Indenture
shall be executed on behalf of such Guarantor by its President or one of its
Vice Presidents.
Each Guarantor hereby agrees that its Guarantee set forth in
Section 12.01 hereof shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Guarantee.
If an officer whose signature is on this Indenture or on the
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which a Guarantee is endorsed, the Guarantee shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Guarantee
set forth in this Indenture on behalf of the Guarantors.
SECTION 12.05. GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
Except as otherwise provided in this Section 12.05, no
Guarantor may consolidate with or merge with or into (whether or not such
Guarantor is the surviving Person) another Person whether or not affiliated with
such Guarantor unless:
(a) subject to this Section 12.05, the Person formed
by or surviving any such consolidation or merger (if other than a
Guarantor or the Company) unconditionally assumes all the obligations
of such Guarantor, pursuant to a supplemental indenture in form and
substance reasonably satisfactory to the Trustee, under the Notes, this
Indenture, and the Guarantee on the terms set forth herein or therein;
and
(b) the Guarantor complies with the requirements of
Article VII and Section 10.09 hereof.
In case of any such consolidation, merger, sale or conveyance
and upon the assumption by the successor Person, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the Trustee,
of the Guarantee endorsed upon the Notes and the due and punctual performance of
all of the covenants and conditions of this Indenture to be performed by the
Guarantor, such successor Person shall succeed to and be substituted for the
Guarantor with the same effect as if it had been named herein as a Guarantor.
Such successor Person thereupon may cause to be signed any or all of the
Guarantees to be endorsed upon all of the Notes issuable hereunder which
theretofore shall not have been
58
signed by the Company and delivered to the Trustee. All the Guarantees so issued
shall in all respects have the same legal rank and benefit under this Indenture
as the Guarantees theretofore and thereafter issued in accordance with the terms
of this Indenture as though all of such Guarantees had been issued at the date
of the execution hereof.
Except as set forth in Article VII and Section 10.09 hereof,
and notwithstanding clauses (a) and (b) above, nothing contained in this
Indenture or in any of the Notes shall prevent any consolidation or merger of a
Guarantor with or into the Company or another Guarantor, or shall prevent any
sale or conveyance of the property of a Guarantor as an entirety or
substantially as an entirety to the Company or another Guarantor.
SECTION 12.06. RELEASES FOLLOWING SALE OF ASSETS.
In the event of a sale or other disposition of all of the
assets of any Guarantor, by way of merger, consolidation or otherwise, or a sale
or other disposition of all the capital stock of any Guarantor, in each case to
a Person that is not (either before or after giving effect to such transactions)
a subsidiary of the Company, then such Guarantor (in the event of a sale or
other disposition, by way of merger, consolidation or otherwise, of all of the
capital stock of such Guarantor) or the corporation acquiring the property (in
the event of a sale or other disposition of all or substantially all of the
assets of such Guarantor) shall be released and relieved of any obligations
under its Guarantee; provided that the net proceeds of such sale or other
disposition are applied in accordance with the applicable provisions of this
Indenture, including without limitation Section 10.11 hereof. Upon delivery by
the Company to the Trustee of an Officers' Certificate and an Opinion of Counsel
to the effect that such sale or other disposition was made by the Company in
accordance with the provisions of this Indenture, including without limitation
Section 10.11 hereof, the Trustee shall execute any documents reasonably
required in order to evidence the release of any Guarantor from its obligations
under its Guarantee.
Any Guarantor not released from its obligations under its
Guarantee shall remain liable for the full amount of principal of and interest
on the Notes and for the other obligations of any Guarantor under this Indenture
as provided in this Article XII.
ARTICLE XIII
SUBORDINATION
SECTION 13.01. AGREEMENT TO SUBORDINATE.
The Company agrees, and each Holder by accepting a Note
agrees, that the Indebtedness evidenced by, and the payment of principal,
premium, if any, and interest on, the Notes is subordinated in right of payment,
to the extent and in the manner provided in this Article XIII, to the prior
payment in full of all Senior Debt, and that the subordination is for the
benefit of and enforceable by the holders of Senior Debt.
SECTION 13.02. LIQUIDATION, DISSOLUTION OR BANKRUPTCY.
Upon any payment or distribution of assets or securities of
the Company of any kind or character, whether in cash, property or securities,
upon any dissolution or winding up or total or partial liquidation or
reorganization of the Company, whether voluntary or involuntary, or in
bankruptcy, insolvency, receivership or other proceedings or upon an assignment
for the benefit of creditors or any other marshalling of the assets and
liabilities of the Company, all Senior Debt shall first be paid in full in cash,
or payment provided for in cash or Cash Equivalents in a manner satisfactory to
the holders of Senior Debt, before any direct or indirect payments or
distributions, including, without limitation, by exercise of set-off, of any
cash, property or securities on account of principal of (or premium, if any) or
interest on the Notes and to that end the holders of Senior Debt shall be
entitled to receive (pro rata on the basis of the respective amounts of Senior
Debt held by them) directly, for application to the payment thereof (to the
59
extent necessary to pay all Senior Debt in full after giving effect to any
substantially concurrent payment or distribution to or provision for payment to
the holders of such Senior Debt), any payment or distribution of any kind or
character, whether in cash, property or securities, which the Holders of the
Notes would be entitled but for this Article XIII, except that the Holders of
the Notes may receive and retain equity securities of the Company or debt
securities of the Company that are subordinated to Senior Debt (and any debt
securities issued in exchange for Senior Debt) to substantially the same extent
as, or to a greater extent than, the Notes are subordinated to the Senior Debt
pursuant to this Article XIII. The holders of Senior Debt are hereby authorized
to file an appropriate claim for and on behalf of the Holders if they or any of
them do not file, and there is not otherwise filed on behalf of the Holders, a
proper claim or proof of claim in the form required in any such proceeding prior
to 30 days before the expiration of the time to file such claim or claims.
SECTION 13.03. DEFAULT ON DESIGNATED SENIOR DEBT.
The Company may not make any direct or indirect payment to the
Trustee or any Holder of principal of (premium, if any), or interest on, the
Notes, whether pursuant to the terms of the Notes, upon acceleration or
otherwise, if at the time of such payment there exists (i) a default in the
payment of all or any portion of principal of (premium, if any), interest on,
fees or other amounts owing in connection with any Designated Senior Debt, or
(ii) any other default under any document or instrument governing or evidencing
any Designated Senior Debt, and the Trustee has received written notice of such
default from the Representative of the holders of Designated Senior Debt, and,
in either case, such default shall not have been cured or waived in writing;
provided, however, that if within the period specified in the next sentence with
respect to a default referred to in clause (ii) above, the holders of Designated
Senior Debt have not declared the Designated Senior Debt to be immediately due
and payable (or have declared such Designated Senior Debt to be immediately due
and payable and within such period have rescinded such acceleration), then and
in that event, payment of principal of, and interest on, the Notes shall be
resumed. With respect to any default under clause (ii) above, the period
referred to in the preceding sentence shall commence upon receipt by the Trustee
of a written notice or notices (which shall specify all defaults existing under
the Designated Senior Debt on the date of such notice and of which the
Representative giving such notice had actual knowledge at such time) of the
commencement of such period from such Representative, and shall end at the
completion of the 179th day after the beginning of such period. Only one such
179 day period may commence within any 360 consecutive days. Upon termination of
any such period, the Company shall resume payments on account of the principal
of (premium, if any), and interest on, the Notes, subject to the provisions of
this Article XIII.
SECTION 13.04. RIGHTS AND OBLIGATIONS OF THE TRUSTEE AND THE HOLDERS.
(a) In the event that, notwithstanding the foregoing provision
prohibiting such payment or distribution, the Trustee or any Holder shall have
received any payment on account of the Notes at a time when such payment is
prohibited by such provision before the Senior Debt is paid in full, then and in
such event, such payment or distribution shall be received and held in trust by
the Trustee or such Holders apart from their other assets and paid over or
delivered to the holders of the Senior Debt remaining unpaid to the extent
necessary to pay in full in cash the principal of (premium, if any), and
interest on, such Senior Debt in accordance with its terms and after giving
effect to any concurrent payment or distribution to the holders of such Senior
Debt.
(b) Nothing contained in this Article XIII will limit the
right of the Trustee or the Holders of the Notes to take any action to
accelerate the maturity of the Notes; provided, however, that the right of the
Holders to receive any payment from the Company of principal of, or interest on,
the Notes upon such acceleration shall be subject to the provisions of Section
13.03 hereof.
(c) Upon any payment or distribution of assets or securities
referred to in this Article XIII, the Trustee and the Holders shall be entitled
to rely (i) upon any order or decree of a court of competent jurisdiction in
which any proceedings of the nature referred to in Section 13.02 are pending;
(ii) upon a certificate of the liquidating trustee or agent or other Person
making such payment or distribution to the Trustee or to the Holders or (iii)
upon the Representatives for the holders of Senior Debt for the purpose
60
of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Debt and other Indebtedness of the Company,
the amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article XIII.
(d) In the event that the Trustee determines, in good faith,
that evidence is required with respect to the right of any Person as a holder of
Senior Debt to participate in any payment or distribution pursuant to this
Article XIII, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Debt held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and other facts pertinent to the rights of such Person
under this Article XIV, and, if such evidence is not furnished, the Trustee may
defer any payment to such Person pending judicial determination as to the right
of such Person to receive such payment. The provisions of Sections 5.01 and 5.02
shall be applicable to all actions or omissions of actions by the Trustee
pursuant to this Article XIII.
SECTION 13.05. SUBROGATION.
Upon the payment in full of all Senior Debt, the Holders of
the Notes shall be subrogated to the extent of the payments or distributions
made to the holders of, or otherwise applied to payment of, the Senior Debt
pursuant to the provisions of this Article XIII and to the rights of the holders
of Senior Debt to receive payments or distributions of assets of the Company
made on the Senior Debt until the Notes shall be paid in full; and for the
purposes of such subrogation, no payments or distributions to holders of Senior
Debt of any cash, property or securities to which Holders of the Notes would be
entitled except for the provisions of this Article XIII, no payment over
pursuant to the provisions of this Article XIII to holders of Senior Debt by the
Holders, shall, as between Company, its creditors other than holders of Senior
Debt and the Holders of the Notes, be deemed to be payment by Company to or on
account of Senior Debt, it being understood that the provisions of this Article
XIII are solely for the purpose of defining the relative rights of the holders
of Senior Debt, on the one hand, and the Holders of the Notes, on the other
hand.
If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article XIII shall
have been applied, pursuant to the provisions of this Article XIII, to the
payment of Senior Debt, then and in such case, the Holders shall be entitled to
receive from the holders of Senior Debt at the time outstanding any payments or
distributions received by such holders of Senior Debt in excess of the amount
sufficient to pay all Senior Debt in full.
SECTION 13.06. OBLIGATIONS OF COMPANY UNCONDITIONAL.
Nothing contained in this Article XIII or elsewhere in this
Indenture or in the Notes is intended to or shall impair, as between the Company
and the Holders, the obligations of the Company, which is absolute and
unconditional, to pay to the Holders the principal of (premium, if any), and
interest on, the Notes as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the Holders of the Notes and creditors of the Company other than the
holders of the Senior Debt, nor shall anything herein or therein prevent any
Holder from exercising all remedies otherwise permitted by applicable law upon
the occurrence of a Default or Event of Default under this Indenture, subject to
the rights, if any, under this Article XIII of the holders of Senior Debt in
respect of cash, property or securities of the Company received upon the
exercise of any such remedy.
The failure to make a payment on account of principal of, or
interest on, the Notes by reason of any provision of this Article XIII shall not
be construed as preventing the occurrence of a Default or an Event of Default
hereunder.
SECTION 13.07. NOTICE BY THE COMPANY.
The Company shall give prompt written notice to the Trustee
and the Paying Agent of any fact known to the Company which would prohibit the
making of any payment on or in respect of the
61
Notes, but failure to give such notice shall not affect the subordination of the
Notes to the Senior Debt provided in this Article XIII. Notwithstanding the
provisions of this Article XIII or any other provision of this Indenture or the
Notes, neither the Trustee nor the Paying Agent shall be charged with knowledge
of the existence of any facts which would prohibit the making of any payment to
or in respect of the Notes, unless and until the Trustee and the Paying Agent
shall have received written notice thereof from the Company or the
Representative of Senior Debt, and, prior to the receipt of any such written
notice, subject to the provisions of this Article XIII, the Trustee and the
Paying Agent shall be entitled in all respects to assume no such facts exist.
Nothing contained in this Section 13.07 shall limit the right of the holders of
Senior Debt to recover payments as contemplated by 13.01 and 13.02.
SECTION 13.08. RIGHT AS HOLDER OF SENIOR DEBT.
The Trustee or any Holder in its individual capacity shall be
entitled to all the rights set forth in this Article XIII with respect to any
Senior Debt which may at any time be held by it, to the same extent as any other
holder of Senior Debt, and nothing in this Indenture shall deprive the Trustee
or such Holder of any of its rights as such holder.
SECTION 13.09. REINSTATEMENT.
The provisions of this Article XIII shall continue to be
effective or be reinstated, and the Senior Debt shall not be deemed to be paid
in full, as the case may be, if at any time any payment of any of the Senior
Debt is rescinded or must otherwise be returned by the holder thereof upon the
insolvency, bankruptcy or reorganization of the Company or otherwise, all as
though such payment had not been made.
SECTION 13.10. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding Section 13.03, the Trustee or Paying Agent may
continue to make payments on the Notes and shall not be charged with knowledge
of the existence of any facts that would prohibit the making of any such
payments, unless not less than two Business Days prior to the date of such
payment, a Responsible Officer of the Trustee shall have received at its office
written notice of facts that would cause the payment of any principal of and
interest on the Notes to violate this Article XIII. The Company, the Registrar
or co-registrar, the Paying Agent, a Representative or a Holder of Senior Debt
may give the notice; provided, however, that, if an issue of Senior Debt has a
Representative, only the Representative may give the notice. The Trustee in its
individual or any other capacity may hold Senior Debt with the same rights it
would have if it were not Trustee. The Registrar and co-registrar and the Paying
Agent may do the same with like rights.
SECTION 13.11. TRUST MONEYS NOT SUBORDINATED.
The Trustee shall be entitled to all the rights set forth in
this Article XIII with respect to any Senior Debt which may at any time be held
by it, to the same extent as any other holder of Senior Debt; and nothing in
Article VI shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article XIII shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 4.07.
SECTION 13.12. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Note by the Holder's acceptance thereof
authorizes and directs the Trustee on the Holder's behalf to take such action as
may be necessary or appropriate to acknowledge or effectuate the subordination
between the Holders and the holders of Senior Debt as provided in this Article
XIII, and appoints the Trustee to act as the Holder's attorney-in-fact for any
and all such purposes.
SECTION 13.13. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR DEBT.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Debt and shall not be liable to any such holders if it
shall mistakenly pay over or distribute to Holders or the
62
Company or any other Person, money or assets to which any holders of Senior Debt
shall be entitled by virtue of this Article XIII or otherwise.
SECTION 13.14. RELIANCE BY HOLDERS OF SENIOR DEBT ON SUBORDINATION PROVISIONS.
Each Holder by accepting a Note acknowledges and agrees that
the foregoing subordination provisions are, and are intended to be, an
inducement and a consideration to each holder of any Senior Debt, whether such
Senior Debt was created or acquired before or after the issuance of the Notes,
to acquire and continue to hold, or to continue to hold, such Senior Debt and
such holder of Senior Debt shall be deemed conclusively to have relied on such
subordination provisions in acquiring and continuing to hold, or in continuing
to hold, such Senior Debt.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA Section 318(c), the imposed duties
shall control.
SECTION 14.02. NOTICES.
Any notice or communication by the Company or the Trustee to
the other is duly given if in writing and delivered in Person or mailed by first
class mail (registered or certified, return receipt requested), telecopier or
overnight air courier guaranteeing next-day delivery, to the other's address:
If to the Company:
Arch Wireless Holdings, Inc.
0000 Xxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: J. Xxx Xxxxxx, Chief Financial Officer
Telecopier No.: (000) 000-0000
With a copy to:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
Telecopier No.: (000) 000-0000
If to the Trustee:
Telecopier No.:
Attention:
With a copy to:
Telecopier No.
Attention:
63
The Company or the Trustee, by notice to the other, may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to
Holders and the Trustee) shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged,
if telecopied; and the next Business Day after timely delivery to the courier,
if sent by overnight air courier guaranteeing next-day delivery. All notices and
communications to the Trustee shall be deemed duly given and effective only upon
receipt.
Any notice or communication to a Holder shall be mailed by
first class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next-day delivery to its address shown on the
Note Register. Any notice or communication shall also be so mailed to any Person
described in TIA Section 313(c), to the extent required by the TIA. Failure to
mail a notice or communication to a Holder or any defect in it shall not affect
its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
SECTION 14.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES.
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the Notes.
The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
SECTION 14.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee:
(a) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee (which shall include the
statements set forth in Section 14.05 hereof) stating that, in the
opinion of the signers, all conditions precedent and covenants, if any,
provided for in this Indenture relating to the proposed action have
been complied with; and
(b) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee (which shall include the
statements set forth in Section 14.05 hereof) stating that, in the
opinion of such counsel, all such conditions precedent and covenants
have been complied with.
SECTION 14.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions of
TIA Section 314(e) and shall include:
(a) a statement that the Person making such
certificate or opinion has read such covenant or condition;
64
(b) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person,
he or she has made such examination or investigation as is necessary to
enable such Person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion
of such Person, such condition or covenant has been complied with.
SECTION 14.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
SECTION 14.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No past, present or future director, officer, employee,
incorporator or stockholder of the Company, as such, shall have any liability
for any obligations of the Company under the Notes, this Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Notes. Such waiver may not be effective to waive liabilities under the
federal securities laws and it is the view of the Commission that such a waiver
is against public policy.
SECTION 14.08. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS INDENTURE AND THE NOTES WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICT OF LAWS TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 14.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or its subsidiaries or of any
other Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
SECTION 14.10. SUCCESSORS.
All covenants and agreements of the Note Parties in this
Indenture and the Notes and the Guarantees shall bind its successors. All
covenants and agreements of the Trustee in this Indenture shall bind its
successors.
SECTION 14.11. SEVERABILITY.
In case any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 14.12. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
65
SECTION 14.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings in
this Indenture have been inserted for convenience of reference only, are not to
be considered a part of this Indenture and shall in no way modify or restrict
any of the terms or provisions hereof.
[Signatures on following page]
66
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the date first written above.
ARCH WIRELESS HOLDINGS, INC.
By:
ARCH WIRELESS COMMUNICATIONS, INC.
By:
ARCH WIRELESS , INC.
By:
[GUARANTORS]
By:
[TRUSTEE]
By:
67
EXHIBIT A
(Face of Note)
12% SUBORDINATED SECURED COMPOUNDING NOTES DUE 2009
CUSIP
-------------
NO. $
----- -------------
ARCH WIRELESS HOLDINGS, INC.
promises to pay to CEDE & CO., INC. or registered assigns, the principal sum of
_________________ Dollars ($______________) on [ ], 2009.
Interest Payment Dates: [ ] and [ ], commencing [ ],
2002.
Record Dates: [ ] and [ ].
Dated: , 20 .
---------------- ---
A-1
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officer.
ARCH WIRELESS HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
This is one of the Global
Notes referred to in the
within-mentioned Indenture:
[ ],
as Trustee
By:
---------------------------------
Authorized Signatory
Dated , 20
---------------- ---
A-2
(Back of Note)
12% Subordinated Secured Compounding Notes due 2009
Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Arch Wireless Holdings, Inc., a Delaware corporation (the
"COMPANY"), promises to pay interest on the principal amount of this Note at 12%
per annum until maturity. The Company shall compound, or after the Trigger Date,
pay, interest semi-annually on [ ] and [ ] of each year, or if any such day is
not a Business Day, on the next succeeding Business Day (each an "INTEREST
PAYMENT DATE"). Interest on the Notes shall accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of
original issuance; provided, however, that if there is no existing Default in
the payment of interest, and if this Note is authenticated between a record date
referred to on the face hereof and the next succeeding Interest Payment Date,
interest shall accrue from such next succeeding Interest Payment Date; provided,
further, that the first Interest Payment Date shall be the first of [ ] or [ ]
to occur after the date of issuance.
From the date of original issuance of the Notes through the
Trigger Date, interest on the Notes shall accrue and compound on the Compounded
Value in effect immediately prior to the applicable Interest Payment Date as if
the Compounded Value were principal. All references in this Note to principal of
the Note as of any date shall mean the Compounded Value as of such date. The
Company shall notify the Trustee in writing of the aggregate amount of such
Compounded Value and such accrued and compounded interest not less than [5] and
no more than [45] days prior to the applicable Interest Payment Date.
On the Trigger Date, the Company shall notify the Trustee in writing of
the occurrence of the Trigger Date and of the Compounded Value as of such date.
From and after the Trigger Date, interest on the Notes shall be payable in cash
semi-annually in arrears on each Interest Payment Date based on the Compounded
Value as of the Trigger Date, which shall be the Compounded Value as of the
immediately prior Interest Payment Date. On the first Interest Payment Date
occurring after the Trigger Date, interest shall be paid on the Notes in cash
for the full prior Interest Period. Interest will accrue or be paid, as the case
may be, on each Interest Payment Date, commencing [ ], 2002. Interest will
accrue from the most recent Interest Payment Date to which interest has been
paid or duly provided for or, if no interest has been paid or duly provided for,
from the date of original issuance of the Notes. Interest will be computed on
the basis of a 360-day year of twelve 30-day months. If at any time an Event of
Default has occurred and is continuing, the Company shall pay interest on demand
at a rate that is 2% per annum in excess of the rate then in effect; it shall
pay interest on overdue installments of interest from time to time on demand at
the same rate to the extent lawful.
2. METHOD OF PAYMENT. The Company shall cause to be compounded or,
after the Trigger Date shall pay, interest on the Notes (except defaulted
interest) to the Persons who are Holders at the close of business on the [ ] or
[ ] next preceding the Interest Payment Date, even if such Notes are cancelled
after such record date and on or before such Interest Payment Date, except as
provided in Section 2.11 of the Indenture with respect to defaulted interest.
The Notes shall be payable as to principal, premium, if any, and interest, if
any, at the office or agency of the Company maintained for such purpose, or, at
the option of the Company, payment of interest may be made by check mailed to
the Holders at their addresses set forth in the Note Register; provided,
however, that payment by wire transfer of immediately available funds shall be
required with respect to principal of and interest, if any, and premium, if any,
on, all Global Notes and all other Notes the Holders of which shall have
provided wire transfer instructions to the Company or the Paying Agent. Such
payment shall be in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, [ ], the Trustee under the
Indenture, shall act as Paying Agent and Registrar. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company or any of
its subsidiaries may act in any such capacity.
4. INDENTURE; SUBORDINATION. The Company issued the Notes under an
Indenture dated as of [ ], 2002 ("INDENTURE") among the Company, the guarantors
party thereto (the "GUARANTORS") and the Trustee. The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the
A-3
Trust Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb).
The Notes are subject to all such terms, and Holders are referred to the
Indenture and such Act for a statement of such terms. To the extent any
provision of this Note conflicts with the express provisions of the Indenture,
the provisions of the Indenture shall govern and be controlling. The Notes are
obligations of the Company limited in aggregate principal amount to
$100,000,000.
The Notes are subordinated in right of payment, to the extent and in
the manner set forth in Article XIII of the Indenture, to the prior payment in
full in cash or Cash Equivalents of all Senior Debt, whether outstanding on the
date of the Indenture or thereafter created, incurred, assumed or guaranteed.
The Guarantees in respect of the Notes will be junior and subordinated in right
of payment, in the manner and to the extent set forth in the Indenture, to the
prior payment in full in cash or Cash Equivalents of all Senior Debt of each
Guarantor, whether outstanding on the date of the Indenture or thereafter
created, incurred assumed or guaranteed. Each Holder by its acceptance hereof
agrees to be bound by such provisions and authorizes and expressly directs the
Trustee, on its behalf, to take such action as may be necessary or appropriate
to effectuate the subordination provided for in the Indenture and appoints the
Trustee its attorney-in-fact for such purposes.
5. OPTIONAL REDEMPTION.
(a) After the Trigger Date, the Notes will be redeemable at
the election of the Company, as a whole or from time to time in part, at any
time on not less than 30 nor more than 60 days' prior notice, without premium or
penalty, at the Redemption Prices (expressed as percentages of Compounded Value)
set forth below together with accrued and unpaid interest, if any, on the Notes
redeemed to the applicable Redemption Date (subject to the right of holders of
record on relevant record dates to receive interest due on an Interest Payment
Date) if redeemed during the twelve-month period beginning on [ ] of the years
indicated below:
Year Percentage
---- ----------
2002 - 2006 .................................... 106.0%
2007 ........................................... 104.0%
2008 ........................................... 102.0%
2009 ........................................... 100.0%
(b) Any prepayment pursuant to this paragraph shall be made
pursuant to the provisions of Sections 9.01 through 9.07 of the Indenture.
6. MANDATORY REDEMPTION.
(b) After the Trigger Date, in the event and on each occasion
that any Net Cash Proceeds are received by or on behalf of the Company, on the
next succeeding Interest Payment Date the Company shall redeem Notes in an
amount equal to the aggregate amount of such Net Cash Proceeds.
(c) After the Trigger Date, (a) on the date that is 10 days
prior to each Interest Payment Date, the Company shall calculate the Average
Excess Cash and (b) on each Interest Payment Date, the Company shall redeem
Notes in an amount equal to 100% of the Average Excess Cash, if any.
7. REPURCHASE AT OPTION OF HOLDER.
Upon the occurrence of a Change of Control, each Holder shall have the
right to require the Company to repurchase all or any part (equal to $1,000 or
an integral multiple of $1,000) of such Holder's Notes (a "CHANGE OF CONTROL
OFFER") at a purchase price equal to 101% of the Compounded Value thereof, plus
accrued and unpaid interest, if any, to the purchase date (subject to the right
of Holders on the relevant record date to receive interest due on the relevant
Interest Payment Date). Notwithstanding the foregoing provisions of this
paragraph 7, no Notes may be purchased pursuant to such Change of Control Offer
until all Senior Notes tendered (and not withdrawn) into the Change of Control
Offer required by the comparable provisions of the Senior Indenture have been
purchased by the Company.
A-4
8. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at least
30 days but not more than 60 days before the redemption date to each Holder
whose Notes are to be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed. On and
after the redemption date interest ceases to accrue on Notes or portions thereof
called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents, and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Company
need not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a record
date and the corresponding Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered holder of a Note may be
treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the consent of
the Majority Noteholders, and any existing Default or Event of Default or
compliance with any provision of the Indenture or the Notes may be waived with
the consent of the Majority Noteholders. Without the consent of any Holders, the
Company, when authorized by a Board Resolution, and the Trustee, at any time and
from time to time, may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, to evidence the succession of another Person
to the Company and the assumption by any such successor of the covenants of the
Company in the Indenture and in the Notes; to add to the covenants of the
Company for the benefit of the Holders, or to surrender any right or power
herein conferred upon the Company; to grant additional security for the Notes;
to cure any ambiguity, to correct or supplement any provision herein which may
be inconsistent with any other provision herein, or to make any other provisions
with respect to matters or questions arising under this Indenture which shall
not be inconsistent with the provisions of this Indenture; provided that such
action pursuant to this clause shall not adversely affect the interests of the
Holders in any material respect; to name any Agent, Depositary or Registrar in
accordance with the terms of the Indenture; to change the Trustee in accordance
with the terms of the Indenture; or to make any change to comply with any
requirement of the Commission in order to effect or maintain the qualification
of this Indenture under the TIA.
12. DEFAULTS AND REMEDIES. Each of the following is an Event of Default
under the Indenture (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any Governmental Authority): (1) default in the payment of any
interest on any Note when it becomes due and payable and such default continues
for a period of 30 days; (2) default in the payment of the principal of any Note
at its Maturity (including pursuant to Section 9.02 hereof); (3) the Parent or
any of the Subsidiaries shall fail to observe or perform any covenant, condition
or agreement contained in Sections 10.07, 10.08, 10.09, 10.10, 10.11, 10.12,
10.13, 10.14, 10.15, 10.16, 10.19, 10.20, 10.21, 10.22, 10.23, 10.24 or 10.25,
or any Note Party shall fail to observe or perform any covenant, condition or
agreement contained in the Security Documents to the extent it is a party
thereto; (4) any Note Party shall fail to observe or perform any covenant,
condition or agreement contained in any Note Document to which it is a party
(other than those specified in clause (a), (b) or (d) of Section 4.01 of the
Indenture), and such failure shall continue unremedied for 30 days after the
earlier of the date on which (A) a Responsible Officer of the Parent becomes
aware of such failure or (B) written notice thereof shall have been given to the
Parent by the Trustee or the Majority Noteholders; (5) (i) any Note Party shall
breach in any material respect any representation or warranty or agreement in
any of the Security Documents or in any certificates delivered in connection
therewith; (ii) the repudiation by any of them of any of their obligations under
any of the Security Documents; (iii) the unenforceability of the Security
Documents against any of them for any reason which shall continue unremedied for
30 days after the earlier of the date on which (A) a Responsible Officer of the
Parent becomes aware of such failure or (B) written notice thereof shall have
been given to the Parent by the Trustee or the Majority Noteholders; or (iv) the
loss of the perfection or priority of the Liens granted by any of them pursuant
to the Security Documents for any reason; (6) the Parent or any of the
Subsidiaries shall fail to make any payment
A-5
(whether of principal or interest and regardless of amount) in respect of any
Material Obligations, when and as the same shall become due and payable (after
giving effect to any applicable grace period); (7) a default occurs under any
Material Obligations which default [results in the acceleration of such Material
Obligations prior to their scheduled maturity or payment date or requires the
prepayment, repurchase, redemption or defeasance thereof, prior to their
scheduled maturity or payment date (in each case after giving effect to any
applicable cure period);] provided that this clause (7) shall not apply to
secured Indebtedness that becomes due solely as a result of the voluntary sale
or transfer of the property or assets securing such Indebtedness; (8) certain
events of bankruptcy or insolvency described in the Indenture with respect to
the Parent or any of the Subsidiaries; (9) one or more judgments for the payment
of money in an aggregate amount in excess of $1,000,000 shall be rendered
against the Parent or any of the Subsidiaries or any combination thereof (which
shall not be fully covered by insurance without taking into account any
applicable deductibles) and the same shall remain undischarged or unbonded for a
period of 30 consecutive days during which execution shall not be effectively
stayed; or (10) any Note Document shall cease, for any reason, to be in full
force and effect, or any Note Party shall so assert in writing or shall disavow
any of its obligations thereunder.
If any Event of Default occurs and is continuing, the Trustee or the
Majority Noteholders may declare all the Notes to be due and payable.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency, all outstanding Notes shall become
due and payable without further action or notice; provided, however, that so
long as any Senior Debt is outstanding, the acceleration shall not be effective
until the earlier of (i) an acceleration of any Senior Debt or (ii) five
Business Days after receipt by the Company of written notice of the acceleration
of the Notes. Holders may not enforce the Indenture except as provided in the
Indenture. Subject to certain limitations, the Majority Noteholders may direct
the Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders notice of any continuing Default or Event of Default (except a Default
or Event of Default relating to the payment of principal or interest) if it
determines that withholding notice is in their interest. The Majority
Noteholders by notice to the Trustee may on behalf of the Holders of all of the
Notes waive any existing Default or Event of Default and its consequences under
the Indenture except a continuing Default or Event of Default in the payment of
interest on, or the principal of, the Notes. The Company is required to deliver
to the Trustee annually a statement regarding compliance with the Indenture, and
the Company is required upon becoming aware of any Default or Event of Default,
to deliver to the Trustee a statement specifying such Default or Event of
Default.
13. TRUSTEE DEALINGS WITH THE COMPANY. The Trustee, in its individual
or any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder of the Company or of any Guarantor, as such, shall
have any liability for any obligations of the Company or any Guarantor under the
Indenture, the Notes, the Guarantees or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder by accepting a
Note waives and releases all such liability. The waiver and release are part of
the consideration for the issuance of the Notes; such waiver may not be
effective to waive liabilities under the federal securities laws and it is the
view of the SEC that such a waiver is against public policy.
15. AUTHENTICATION. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
A-6
The Company shall furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to:
Arch Wireless Holdings, Inc.
0000 Xxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention:
A-7
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
---------------------------------------------------------
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
--------------------------------------------------------------------------------
Date:
---------------
Your Signature:
---------------------------------
(Sign exactly as your name appears on the
face of this Note)
Signature Guarantee:
----------------------------
A-8
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchanges of a part
of another Global Note or Definitive Note for an interest in this Global Note,
have been made:
Principal Amount
Amount of of this Global Note Signature of
decrease in Amount of increase following such authorized officer
Principal Amount in Principal Amount decrease (or of Trustee or
Date of Exchange of this Global Note of this Global Note increase) Note Custodian
---------------- ------------------- ------------------- --------- --------------
EXHIBIT B
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any
successor Person under the Indenture), jointly and severally, unconditionally
guarantees, to the extent set forth in the Indenture and subject to the
provisions in the Indenture, dated as of [ ], 2002 (the "Indenture"), by and
among Arch Wireless Holdings, Inc., a Delaware corporation (the "COMPANY"), Arch
Wireless Communications, Inc., a Delaware corporation ("ARCH"), Arch Wireless,
Inc., a Delaware corporation (the "PARENT"), and the subsidiaries of the Parent
listed on Schedule I thereto (such subsidiaries, the "SUBSIDIARY GUARANTORS,"
and together with Arch and the Parent, herein the "GUARANTORS") and [ ], as
Trustee (the "TRUSTEE"), (a) the due and punctual payment of the principal of,
premium, if any, and interest on the Notes (as defined in the Indenture),
whether at maturity, by acceleration, redemption or otherwise, the due and
punctual payment of interest on overdue principal and premium, if any, and, to
the extent permitted by law, interest, and the due and punctual performance of
all other obligations of the Company to the Holders or the Trustee all in
accordance with the terms of the Indenture and (b) in case of any extension of
time of payment or renewal of any Notes or any of such other obligations, that
the same will be promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise. The obligations of the Guarantors to the Holders of
Notes and to the Trustee pursuant to the Guarantee and the Indenture are
expressly set forth in Article XII of the Indenture and reference is hereby made
to the Indenture for the precise terms of the Guarantee. This Guarantee is
subject to release as and to the extent set forth in Sections 12.05 and 12.06 of
the Indenture. This Guarantee is subordinated in right of payment to the extent
set forth in the Indenture. Each Holder of a Note, by accepting the same agrees
to and shall be bound by such provisions.
[GUARANTORS]
By:
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Name:
Title:
- A1 -
